The Supreme Court seven-judge-bench headed by Chief Justice Nalin Perera on December 13 unanimously ruled that the gazette notification issued by President to dissolve the Parliament has been issued outside legal limits and has resulted in a violation of Petitioners’ fundamental rights.
While agreeing with the judgement delivered by Chief Justice and five other judges regarding these ten Fundamental Rights petitions, Justice Sisira de Abrew delivered a separate judgement explaining different reasons to justify his stance.
This is an excerpt from judgement delivered by Justice Sisira de Abrew in respect of the Fundamental Rights petition filed by TNA leader R. Sampanthan.
The President had, by a Proclamation published in Gazette No.2096/70 dated 09.11.2018 dissolved Parliament with effect from midnight on 09.11.2018. The petitioner R. Sampanthan who is a Member of Parliament whilst challenging through SC. FR Application No. 351/2018 the said Proclamation inter alia seeks the following reliefs from Supreme Court.
1. To declare that the Proclamation dissolving Parliament infringes his fundamental rights guaranteed by Article 12(1) of the Constitution.
2. To make order declaring that the said Proclamation dissolving Parliament is null and void ab initio and of no force or effect in law.
3. To quash the said Proclamation dissolving Parliament.
4. To quash the decisions and or directions contained in paragraphs (a),(b),(c) and (d) of the said Proclamation.
The Supreme Court by its order dated 13.11.2018, granted leave to proceed for alleged violation of Article 12 (1) of the Constitution.
The Attorney General whilst submitting the following grounds contended that the Supreme Court is precluded from exercising the jurisdiction in respect of the alleged violation of the Petitioner’s fundamental rights and from granting the reliefs sought by the Petitioner.
1. A specific mechanism is provided in Article 38(2) of the Constitution for the Supreme Court to exercise jurisdiction over allegation of intentional violations of the Constitution, misconduct or abuse of power by the President of the Republic.
2. The dissolution of Parliament by the President of the Republic does not constitute Executive or Administrative action falling within the purview of Article 126 of the Constitution.
* now advert to the above contentions.
When Article 38 (2) of the Constitution is examined, it is clear that the mechanism provided in Article 38 (2) of the Constitution is only available to the Members of Parliament. This mechanism is not available to the other citizens of the country. In fact there are several petitions filed in this court seeking to quash the Proclamation dissolving Parliament. The said petitioners are not Members of Parliament. For the above reasons, I reject the above contention advanced by the Attorney General. I now advert to the 2nd contention advanced by the Attorney General. He contended that the dissolution of Parliament by the President of the Republic does not constitute Executive or Administrative action falling within the purview of Article 126 of the Constitution. The general power given to the President of the Republic is contained in Article 33(2)(c) of the Constitution. The same power is contained in Article 70 of the Constitution with a procedure governing the exercise of the said power. Article 33 is found in Chapter VII of the Constitution. The Chapter VII of the Constitution deals with “Executive and the President of the Republic”. Therefore it can be safely concluded that the power of the President of the Republic to dissolve Parliament is an executive action of the President of the Republic.
The making of the Proclamation and the Regulation as well as the conduct of the respondents in relation to the five elections, clearly constitute “executive action” and the court would ordinarily have jurisdiction under Article 126 of the Constitution.
I hold that the power of the President of the Republic to dissolve Parliament is an executive action. I therefore reject the contention of the Attorney General that is to say that the dissolution of Parliament by the President of the Republic does not constitute Executive or Administrative action falling within the purview of Article 126 of the Constitution.
The President of the Republic in terms of Article 32 of the Constitution must take an oath stating that he would uphold and defend the Constitution. Therefore it is seen that the President of the Republic is subject to the Constitution. In Mallikaarchchi Vs Shivapasupathi, Attorney General [1985] 1 SLR 74 wherein Sharvananda CJ at page 78 held thus: “the President is not above the law.”
I have earlier held that the acts of the President of the Republic except the acts done in the exercise of his powers conferred by Article 33(2)(g) of the Constitution are not immune from suit.
I hold that this court has the power to examine legality of the impugned acts or omissions by the President of the Republic except the acts done by him in the exercise of powers conferred to him by Article 33(2)(g) of the Constitution.
For the above reasons, I hold that this court has jurisdiction to inquire into the legality and correctness of the Proclamation issued by the President of the Republic dated 09.11.2018 published in Government Gazette No.2096/70 dated 09.11.2018 dissolving Parliament. I further hold that acts of the President of the Republic in issuing the said Proclamation and the said Proclamation are subject to the judicial review of this court and do not come under immunity stated in Article 35 of the Constitution.
President’s Counsel for the 1st added Respondent Mr. Sanjeewa Jayawardena drawing our attention to both Sinhala and English versions of Article 62 of the Constitution, contended that the President of the Republic under Article 62(2) of the Constitution has the power to dissolve Parliament at any time. I now advert to this contention. If this contention is accepted as correct, the moment the notice of resolution discussed in Article 38(2) of the Constitution is handed over to the Speaker of Parliament, the President of the Republic can dissolve Parliament. If it happens, no resolution discussed in Article 38(2) of the Constitution can be passed by Parliament. Thus if the above contention is accepted as correct, Article 38(2) of the Constitution would be rendered nugatory. Sinhala version of Article 62(2) of the Constitution contains three sentences. But the English version of the said Article contains one sentence. The second sentence of the Sinhala version of the said Article is to the following effect. “However Parliament can be dissolved before the expiry of its fixed term.” According to Article 62(2) of the Constitution, fixed term of Parliament is a period of five years. Article 62(2) of the Constitution deals with the dissolution of Parliament at the end of term of five years from the date appointed for its first meeting. It is an automatic dissolution. Since it is an automatic dissolution, there is no necessity for the President of the Republic to issue a Proclamation. Article 62(2) of the Constitution (English version) reads as follows:
“Unless Parliament is sooner dissolved, every Parliament shall continue for five years from the date appointed for its first meeting and no longer, and the expiry of the said period of five years shall operate as dissolution of Parliament.”
This Article discusses a dissolution called “sooner dissolution of Parliament”. What is “sooner dissolution of Parliament”? It is discussed in Proviso to Article 70(1) of the Constitution. Article 70(1) of the Constitution reads as follows:
“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 not less than two-thirds of the whole number of Members (including those not present), voting in its favour.”
According to Article 70(1) of the Constitution, there are only two ways in which Parliament can be sooner dissolved. They are as follows:
1. At the expiration of a period of not less than four years and six months from the date appointed for its first meeting.
2. When the Parliament by a resolution passed by not less than two-thirds of the whole number of Members (including those not present) requests the President of the Republic to dissolve Parliament.
It was contended on behalf of the Respondents that the President of the Republic, in terms of Article 33(2)(c) of the Constitution, could dissolve Parliament. However it was contended on behalf of the Petitioner that the President of the Republic without fulfilling the requirements stated in Article 70(1) of the Constitution, could not dissolve Parliament in the exercise of the powers conferred to him by Article 33(2)(c) of the Constitution. Can the President of the Republic acting under Article 33(2)(c) of the Constitution dissolve Parliament without fulfilling the requirements stated in Article 70(1) of the Constitution? This is one of the important questions that must be decided in this case.
The 1st sentence of Article 70(1) of the Constitution which reads as follows “the President may by Proclamation, summon, prorogue and dissolve Parliament” should be stressed. When this sentence is considered, it is seen that the power given to the President of the Republic to dissolve Parliament by Article 33(2)(c) of the Constitution is reproduced in Article 70(1) of the Constitution. When Article 70(1) of the Constitution states that provided that the President shall not dissolve Parliament ….” he (the President of the Republic) cannot and is not empowered to dissolve Parliament without the requirements set out in Article 70(1) being satisfied. What are those requirements?
1. There must be an expiration of a period of four years and six months of Parliament from the date appointed for its first meeting.
2. Parliament by a resolution passed by not less than two thirds of the whole number of Members (including those not present) must request the President of the Republic to dissolve Parliament. This requirement becomes necessary only when the President of the Republic intends to dissolve Parliament before expiration of a period of four years and six months of Parliament from the date appointed for its first meeting
Therefore I hold that in terms of Article 70(1) of the Constitution, the President of the Republic cannot, until the expiration of a period of four years and six months of Parliament from the date appointed for its first meeting, dissolve Parliament at his own will. In other words the President of the Republic cannot, at his own will, dissolve Parliament during the period of four years and six months of Parliament from the date appointed for its first meeting. If the President of the Republic wants to dissolve the Parliament during the said period of four years and six months, there must be a resolution passed by two third majority of the Members of Parliament (including those not present) requesting the President of the Republic to dissolve Parliament.
Article 33(2)(c) of the Constitution only confers power to the President of the Republic to dissolve Parliament. The same power is contained in Article 70(1) of the Constitution. The requirements which should be fulfilled in exercising the said power are found in Article 70(1) of the Constitution. The dissolution of Parliament by the President of the Republic should always be by a Proclamation. This is clear when one examines Article 70(1) of the Constitution. Article 33(2)(c) of the Constitution does not discuss about a Proclamation. For the above reasons, I hold that the President of the Republic cannot, under Article 33(2)(c) of the Constitution, dissolve Parliament without one of the requirements stated in Article 70(1) of the Constitution being fulfilled.
In the present Case, the date appointed for first meeting of Parliament was on 01.09.2015. This is evident by Government Gazette No.1929/13 dated 26.08.2015 marked P2. Thus, the period of four years and six months of Parliament from the date appointed for its first meeting would end on 28.02.2020. The President of the Republic has dissolved Parliament with effect from mid-night on 09.11.2018. Thus President of the Republic has dissolved Parliament before the expiration of 4½ years from the date appointed for its first meeting. Parliament by a resolution passed by two third Members of Parliament (including those not present) has not requested the President of the Republic to dissolve Parliament. Considering all the above matters, I hold that the Proclamation issued by the President of the Republic dated 09.11.2018 published in Government Gazette No. 2096/70 dated 09.11.2018 dissolving Parliament, is contrary to Article 70(1) of the Constitution; is therefore null and void ab initio; and of no force or effect in Law.
For the above reasons I hold that the Proclamation issued by the President of the Republic on 9.11.2018 published in Government Gazette No.2096/70 dated 9.11.2018 dissolving Parliament has violated fundamental rights of the Petitioner guaranteed by Article 12(1) of the Constitution. I have earlier held that the Proclamation issued by the President of the Republic dated 09.11.2018 published in Government Gazette No.2096/70 dated 09.11.2018 dissolving Parliament, is contrary to Article 70(1) and 70(3) of the Constitution; is therefore null and void ab initio; and of no force or effect in Law.
For the aforementioned reasons, I make order quashing the Proclamation issued by the President of the Republic dated 09.11.2018 published in Government Gazette No.2096/70 dated 09.11.2018 dissolving Parliament and declaring the said Proclamation null and void ab initio and of no force or effect in law.
I have read the draft judgement of the Chief Justice. For the aforementioned reasons, I agree with the conclusion reached by His Lordship.
The judgement delivered in this case and aforementioned orders will apply to SC FR 352/2018, SC FR 353/2018, SC FR 354/2018, SC FR 355/2018, SC FR 356/2018, SC FR 358/2018, SC FR 359/2018, SC FR 360/2018, and SC FR 361/2018.
from daily news