A Little Fireworks At The Seemingly Calm Supreme Court

Today saw the third day of argument on the 11 cases regarding the dissolution of Parliament. A judgment was scheduled for tomorrow 7 Dec.

The first two days were most interesting as the lawyers for the Petitioners made their arguments. Their arguments were principally that Article 33(2)(c) gave the President the right to dissolve Parliament and Article 70 listed the conditions for such dissolution. These conditions were not fulfilled. There was no contradiction between the two articles – just like the law that one must possess a driving licence to drive a car, being circumscribed by other laws which stated the conditions, such as driving on the left hand side of the road. So also the whole constitution had to be read as a whole, all parts working harmoniously together and not section by section in isolation. Elections must follow the rules of the constitution and cannot be held at any time. The people had exercised their franchise and given the present Parliament 5 years to govern and the constitution did not allow dismissal of Parliament within 4.5 years. Even the mother of Parliaments in the UK has recently changed over to a fixed term.

Sirisena

This was followed by lawyers for the Respondents who gave their objections. Returning to the driving licence analogy, in an emergency an ambulance may drive on the wrong side of the road, and what was facing Sri Lanka was an emergency where Parliament was behaving irresponsibly and the President had to exercise his job function of saving the nation by dismissing Parliament. Ultimate responsibility is through the people’s franchise and that is what the President was upolding in dismissing Parliament and calling for elections. What is wrong with going to the people when their franchise is their fundamental right?

The objections by the respondents began yesterday and dragged on. Without coordination, almost all of them repeated the same arguments, except, to his credit, Gamini Marapana PC who cut it shot by saying he associated with what the AG and others said (His brother Tilak Marapona also appeared but for the UNP).

As boredom set in on the third day as the Respondents’ lawyers began repeating themselves, two events set some spark into the hearings. Attorney Sanjeeva Jayawardena, PC, for one of the Respondents claimed that Article 70 of the Sinhalese version of the Constitution had an extra sentence and that the Sinhalese version should prevail and it made all the difference. He said that it imbued Article 62 with a new meaning allowing the president to dissolve Parliament any time. This shook up many who were listening. [However, although there really is an extra sentence in the Sinhalese version of Article 62 which most were unaware of, there is really nothing about any time in that extra sentence, so it became a mere restatement of Article 33(2)(c) saying the president could dissolve and prorogue Parliament]. 

There was a lot of back and forth and Sanjeeva’s brother on the bench, Justice Prasanna  Jayawardena, questioned his brother the most from the bench and even clarified that Sanjeeva’s comments on repercussions at home through filing the case did not refer to Prasanna’s home but to Sanjeeva’s.  Laughter followed. When Sanjeeva spoke of repercussions at home and until this clarification almost everyone assumed that brother Prasanna had found fault with Sanjeeva at home for getting involved.

A Petitioner commented “It is this casual attitude to propriety, ethics and the law where the Supreme Court sees no problem in a judge sitting on the bench to hear his own brother’s case that has brought Sri Lanka to its knees like this. If they [the Justices] cannot understand the simple ethics underlying the inherent conflict of interest which requires justice Jayawardena to recuse himself, can they understand the intricacies of this very complex case?”

Sparks flew when lawyer Manohara de Silva representing Jathika Hela Urumaya’s  Udaya Gamanpilla spoke picking up the points of Sanjeeva Jayawardena. The law cannot be read by this Court as a rigid formula but must be interpreted keeping in mind the consequences of their decision. If the judges find for the Petitioners there can be violence. To many in court it was spine chilling and a threat to violence for going against the President, but the court was still, seemingly impervious to any emotion. Many who were sure of a right decision until then were no longer sure after this interjection of political threat wondering if the justices would rule for the President fearing repercussions.

Then de Silva restated Sanjeeva Jaywardena’s position that Section 62 had an extra sentence in Sinhalese which takes precedence over the Tamil, and that the English version has no standing. Opposition Leader Rajavarothayam Sampanthan’s lawyer was K. Kanag-Isvaran (of even temper and probably the most senior and most respected lawyer in court whom no justice on the bench would chide for anything according to a lawyer who had worked with him). Kanag-Isvaran who had been listening quietly stood up and intervened calmly: “That is true only for enactments and not for the constitution where one language version is not of higher status.”

Something seemed to snap in Manohara de Silva a he reacted to the interruption. He angrily said “If you want to be aggressive, we too can be aggressive. Not in this court where some order is required but in a forum outside.” That from the Urumaya to the Tamil Sampanthan’s Tamil lawyer! Again chilling but the justices, all Sinhalese, seemed not to notice. An unnecessary blot on an otherwise well-conducted case.

Two more Respondents will present tomorrow seventh and the Petitioners will make their oral Counter Objections. The judges then need to write out their judgment. Will there be time for the judgment tomorrow? 

Being uncertain of a judgment tomorrow, the stay order on the President’s gazette was extended by a day from the seventh. (by Special Correspondent)