SC has no jurisdiction on President’s Proclamation: AG

By S. S. Selvanayagam

The Attorney General yesterday emphasised that the Supreme Court is precluded from exercising jurisdiction in respect of the alleged violations of Petitioners’ Fundamental Rights, and from granting the relief prayed for by the Petitioners, and that it has no jurisdiction on the President’s Proclamation of dissolution of Parliament.

Attorney General Jayantha Jayasinghe, with Solicitor General Dappula de Livera, Senior Additional Solicitor General Sanjay Rajaratnam, Additional Solicitors General Demuni de Silva and Farzana Jameel, as well as Deputy Solicitor General Nerin Pulle, Senior State Counsel Shaheeda Barrie, State Counsels Kanishka de Silva and Manohara Jayasinghe instructed by Senior Additional Solicitor General Sepalika Tiranagama, in his submission further stated that the dissolution of Parliament by the President does not constitute executive and administrative action.

Ten Fundamental Rights Petitions against the Declaration of dissolution of Parliament by the President 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.

Attorney General Jayasinghe in his submission stated as follows:

“The allegations on the dissolution of Parliament prior to the expiration of four years and six months and the intentional violation of the Constitution and an abuse of power by the President are not justifiable under Article 126 of the Constitution, as there is a specific and prescribed procedure set out in Article 38(2) of the Constitution, setting out the manner in which the Supreme Court may exercise jurisdiction regarding an alleged intentional violation of the Constitution and abuse of power by the President.

“Any Member of Parliament may by a writing addressed to the Speaker, give notice of a resolution alleging that the President is permanently incapable of discharging the functions of his office by reason of mental or physical infirmity, or that the President had been guilty of intentional violation of the Constitution, treason, bribery, misconduct or corruption, involving the abuse of powers of his office or any offence under any law, involving moral turpitude.

“He is to set out full particulars of the allegation or allegations made and seek an inquiry and report thereon by the Supreme Court.

“No notice of such resolution shall be entertained by the Speaker or placed on the Order Paper of Parliament unless it complies with the provision and such resolution is passed by no less than one-half of the whole number of Members of Parliament.

“Where such resolution is passed by not less than two-third of the whole number of members voting in its favour, the allegation or allegations contained in such resolution shall be referred by the Speaker to the Supreme Court for inquiry and report.

“Where the Supreme Court reports to Parliament, the Parliament may by a resolution passed by not less than two thirds of the whole number of Member remove the President from office.

“When the Executive Head of State is vested with paramount power and duties, he should be given immunity in the discharge of his functions.

“Article 38 has made provision for the removal of the President for intentional violation of the Constitution, treason, bribery, misconduct or corruption and any offence under any law involving moral turpitude.

“It is essential that special immunity must be conferred on the person holding such high executive office from being subject to legal process or legal action and from being harassed by frivolous actions.

“That is the rationale for the immunity cover afforded for the President’s actions, both official and private.

“However this would not be the case, as the Supreme Court may continue to exercise jurisdiction in respect of the conduct of the President which constitutes executive and administrative action.

“The acts of President impugned do not constitute executive and administrative action under Article 126 and is therefore covered by the immunity conferred by Article 35 of the Constitution.

“The dissolution of Parliament cannot be considered an act of the Government or agency of the Government to constitute executive and administrative action for the purpose of Article 126.

“The dissolution is a power exercised by the President under Article 33(c) and 70(1) qua (in the capacity of) the Head of State, and the Supreme Court cannot exercise jurisdiction in respect of such conduct under Article 126.

“Article 126 was not intended to be an instrument by which the judicial arm of Government could usurp the function of the Head of State.

“The dissolution of Parliament cannot constitute a violation of Fundamental Rights. It enhances the sovereignty of the people to exercise their franchise.

“The President as custodian of the executive power of the people, is empowered to exercise the power to dissolve Parliament in the best interests of the people.

“The Proclamation of dissolution of Parliament was exercised by the President in good faith and in the best interests of the people.

“The President’s power to dissolve Parliament at any time is reinforced by Article 62(2) of the Constitution.

“The power to dissolve Parliament is a prerogative power which cannot be subject to judicial review. The President’s proclamation is a political question which courts are ill-equipped to review.”