Fundamental Rights petitions relating to the General Elections

Whilst the Court deserves overall public acclamation for rejecting the preliminary objections which straddled alleged infractions of time bars, lack of necessary parties and un-reviewability by Court of a presidential decision, nevertheless the refusal of leave to proceed without reasons for such refusal is with due respect to the Court, regrettable having regard to the significant constitutional issues raised – Pic by Shehan Gunasekara

The five Judge Bench of the Supreme Court by its decision on 2 June speaking through its majority rejected the preliminary objections raised by the Respondents to the maintainability of the several Fundamental Rights (FR) petitions challenging the legality of the presidential proclamation of 2 March dissolving Parliament. A Petition impugning the date of elections fixed by the Elections Commission for 20 June was withdrawn midstream. However the Court unanimously refused the Petitioners leave to proceed with their FR applications.

Thus far no reasons have been given by the Supreme Court for the decision after 10 days of hearing and it appears that none will be proffered. The Constitution provides that an FR application may be proceeded with, only with leave to proceed first granted by Court. Such leave may be granted or refused by Court. The practice of the Supreme Court has been not to proffer reasons when leave is refused. 

Whilst the Court deserves overall public acclamation for rejecting the preliminary objections which straddled alleged infractions of time bars, lack of necessary parties and un-reviewability by Court of a presidential decision, nevertheless the refusal of leave to proceed without reasons for such refusal is with due respect to the Court, regrettable having regard to the significant constitutional issues raised.

These unsuccessful FR petitions focused on hitherto un-litigated and significant issues in constitutional law relating to the powers of the President and the Elections Commission as regards fixing a date for Parliamentary Elections and the administrative task of holding that election. Concomitantly the validity of the presidential proclamation of 2 March as the election could not be held on the due date and the implied resuscitation of the dissolved Parliament were also in contention.

Sovereignty of the people and separation of powers

At the core of this case were fundamental issues pertaining to the sovereignty of the people and also the separation of powers between the President and Parliament. Whilst the 19th Amendment empowered the President to dissolve Parliament after 4½ years of its full five-year term the questions of whether a dissolved Parliament can be re-summoned and whether Parliament can be inoperative for more than three months were also matters in issue. The Supreme Court as a repository of the people’s sovereignty was called upon to arbiter these questions. 

Sri Lanka’s constitutional history since independence has been replete with contentious issues between the Executive, Legislature and the Judiciary. On balance the Courts have not hesitated to preserve their own sphere of power as exemplified by the decision on the constitutionality of the new Tax Bill in 2017 where this writer successfully persuaded the Supreme Court to rule that a pernicious clause which violated judicial independence required both a two-thirds majority and approval by the people at a referendum. That Clause was dropped by the former government and not proceeded with. Moreover the recent unanimous decision of a seven-Judge Bench of the Supreme Court which struck down President Maithripala Sirisena’s dissolution of Parliament illustrates that the Court has also intervened to check the unlawful exercise of presidential power. 

Issues as regards fixing the date of the Parliamentary General Elections

To this writer the issues as regards fixing the date of the Parliamentary General Elections were clear. Constitutionally it is the President of the Republic who on a dissolution of Parliament either prior to its full term or on the expiration of its full term by proclamation fixes a date for the General Election and summons the new Parliament to meet not later than three months from the date of that proclamation [Article 70(5)]. There is thus a trimester or a three-month period within which this must be done. 

The constitutional responsibility of conducting such election is vested with the Elections Commission (EC). The date fixed by the President for the holding of such election cannot be varied by the EC. Once such date is fixed by the President the only power the EC possesses as regards conducting an election on that date under the Parliamentary Elections Act No. 1 of 1981 is to not hold a poll in an electoral district and appoint another date instead, or declare a poll in affected polling stations void in certain exceptional contingencies [Sections 24(3) and 48A of that Act]. The EC if unable for whatever cause to hold the General Election on the date fixed by the President cannot arrogate to itself the power of substituting another date. Neither should the President acquiesce in that action. 

The intervention of the global pandemic of COVID-19 which rendered the holding of the election on 25 April not possible did not empower the Commission to subsequently fix it for 20 June in the first instance, which date the EC subsequently informed Court could not be adhered to. These powers of the EC enumerated above are fixed by statute and are subordinate to the power vested in the President under the Constitution. In the legal hierarchy the Constitution is the supreme norm and statutes are subordinate, although Courts do endeavour where possible to harmonise them. 

There have been several writings and positions in the public domain as regards the issues surrounding these cases. I do not propose to deal with all of them. However there has been to my mind some misstatement, perhaps unwittingly, of what should be the applicable legal approach.

Doctrines of “constitutional exceptionalism” and “necessity”

Some writers have suggested that the doctrines of “constitutional exceptionalism” and “necessity” applied to the unexpected situation presented by the pandemic. “Exceptionalism” and “necessity” are cognate legal doctrines which seek to provide for a departure from an existing norm or rendering lawful, which is unlawful. Necessity has most often been invoked to justify a military takeover after a coup d’état. In this writer’s view neither necessity nor exceptionalism can justify any abdication or usurpation of the President’s power to fix the date of the Parliamentary Elections. 

The President was regrettably ill advised on his constitutional responsibilities with regard to fixing a date for the General Election. The constitutional duty of fixing the date of an election is solely vested with the President and what he ought to have done is to issue a fresh proclamation with a subsequent fresh date of election which provided also for the date for the new Parliament to meet within the three-month trimester. This would have left time for the abatement of the pandemic and the holding of the elections. Hence the constitutional norm could have been adhered to. 

The President is in any event vested with the constitutional authority to summon a dissolved Parliament where he is satisfied that an emergency has arisen of such a nature that an earlier meeting of Parliament is necessary [Article 70(7)]. The fact that this would have revived the dissolved Parliament albeit for a brief period is not a justifiable consideration. The EC has now fixed the elections for 5 August. The Gazette announcing that date relies on Section 24(3) of the Parliamentary Elections Act which to this writer’s view is inapplicable. Although this is now a fait accompli, there should have been adherence to the Constitution with the President fixing the date. 

Another recent article cited the judgment of the Supreme Court in 1999 authored by Mark Fernando J. in Karunathilaka V. The Elections Commission on the failure of President Chandrika Bandaranaike Kumaratunga to hold Provincial Council Elections and their periodic postponement. The observation by Court that the Commissioner of Elections (precursor to the EC) was legally competent to fix the date of Provincial Council Elections was made in the context of the then President postponing such elections by Emergency Regulations. The legal regime governing Parliamentary Elections and Provincial Council Elections are distinct. 

The power to fix the date of Provincial Council Elections is vested by the Provincial Councils Elections Act No. 2 of 1988 in the EC. It certainly does not apply to the present situation where the President as aforesaid is solely constitutionally responsible for fixing the date of a General Election. 

“Hyper-presidentialism”

There have also been concerns that what the President has done in the present context is tantamount to “hyper-presidentialism” where he has been allegedly ruling by Decree without Parliament. This constitutional/ political concept originated from developments in certain Latin American countries and the Philippines where the Constitution provides for a directly elected President and presidentialism in these systems has enabled the arrogation of additional powers to the presidency who can issue Decrees with minimal accountability to the Legislature although impeachment exists. 

The present constitutional position in Sri Lanka is entirely different. The Prime Minister and Cabinet emanate from Parliament which is an integral part of the sovereignty of the people. Neither the PM/ Cabinet nor Parliament can be bypassed or dispensed with by a President who thereafter seeks to rules by Decree. That would be a flagrant violation of the Constitution. It must be not be lost sight of that Sri Lanka has a semi-presidential system with diminished presidential powers after the 19th Amendment. However eternal vigilance is the essential price of liberty. 

Another misconception is that a decision of the President which is within his discretion is immune from judicial review. This is untenable in law since, as succinctly stated by our Supreme Court quite a while ago, there are no unfettered or unreviewable discretions or authority to any organ or body established under the Constitution. Besides, the decision against President Sirisena’s purported dissolution of Parliament is a case in point. 

This writer does not wish to speculate as to the legal grounds on which the Court refused leave to proceed. As a political scientist and former Ambassador opined before 2 June, elections even if delayed, are better than no elections. This writer agrees with this but reiterates that the constitutional norm should have been adhered to. 

Refusal by the Supreme Court of leave to proceed of an FR application cannot establish a precedent as the merits have not been considered. It may have some persuasive value if reasons for the refusal were given. However, the 2 June decision of the Supreme Court was cited by the Respondents in opposition to the FR application by the UNP which canvassed the non-summoning of Parliament as allegedly no fresh grounds were adduced beyond what was already placed before Court in the prior applications. This FR application was withdrawn. 

The Supreme Court is the apex Court in our Constitution and is vested with the task of interpreting the Constitution and ensuring that other organs of government and State agencies abide by it. Hopefully the Court may reconsider the non-proffering of reasons in such significant cases in the future. 

This writer recalls a conversation with a retired Judge of the Supreme Court with academic credentials who did agree that in the jurisdictions where the Court has a discretion in granting leave there may be a compelling argument for the Court to proffer such reasons in appropriate cases where leave is refused. It is respectfully submitted that the FR applications which culminated on 2 June was one such instance.

(The writer is a President’s Counsel.)