Constitution cannot be manipulated by contesting parties: Counsel

By S.S. Selvanayagam

President’s Counsel K. Kanag-Iswaran yesterday contended that the Constitution was not clay in the hands of contesting parties to be moulded as they saw fit and the specific content of constitutional language sets the limit of interpretation which must aspire to give constitutional unity and harmony.

Counsel Kanag-Iswaran, appearing for R. Sampanthan, made his submission to the Supreme Court bench of seven judges on the Fundamental Rights petition filed against President Maithripala Sirisena’s dissolution of Parliament.

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

Counsel Kanag-Iswaran, continuing his submission, stated the President may by proclamation summon, prorogue and dissolve Parliament provided that the President shall not dissolve Parliament until the expiration of a period of not less than 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 no less than two-thirds of all members, including those not present, voting in its favour together with other consequential provisions.

This argument is in no manner supportive of any contention seeking to give the purported proclamation of the dissolution of Parliament constitutional or legal efficacy or validity, he stated.

Article 70 and the Act of 1981, whether taken individually, collectively or in any other manner whatsoever, do not confer any right, authority or power upon the President to dissolve Parliament by proclamation, he contended.

The Parliament consisting of 225 elected members shall continue for five years from the date of its appointment for its first meeting and no longer and this is the fixed period of Parliament, he said.

Given that, at the end of the fixed term of five years the Parliament stands dissolved automatically without any proclamation being made, he added. Parliament can be sooner dissolved – that is before the expiry of the fixed period of five years mandated in Article 62(1) by the President - by way of a proclamation only after the expiration of a period of no less than four years and six months from the date appointed for its first meeting or when Parliament requests the President to do so through a resolution passed by no less than two-thirds of all members voting in its favour.

The Constitution does not permit any other way in which Parliament may be sooner dissolved by the President, he emphasised.

The purported proclamation of the dissolution of Parliament by the President is unconstitutional and is of no force or effect in law, he maintained. There were 10 Fundamental Rights petitions filed against the dissolution of Parliament by the President. Five sought to intervene to counter the main petitions. The petitions seek a declaration that the proclamation dissolving Parliament infringes fundamental rights.

They are asking Court for a declaration that labels the proclamation 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 the UNP, Lal Wijenayeke of the United Left Front, CPA, Election Commission member Prof. Ratnajeevan. H. Hoole, Attorney-at-Law G.C.T. Perera, the Sri Lanka Muslim Congress, the All Ceylon Makkal Congress and MP Mano Ganesan. 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.