Upholding Democracy
SC in landmark judgement states dissolution ultra vires constitution
Continued from Saturday
Lakmal Sooriyagoda-Monday, December 24, 2018In PARAMESWARY JAYATHEVAN vs. ATTORNEY GENERAL [1992 2 SLR 356 at p. 360] Kulathunga J observed, with Ramanathan J, Perera J and Wijetunga J agreeing, that acts done by public officers “under colour of office in the exercise or the purported exercise of government functions” are ordinarily regarded as constituting “executive or administrative action”. In the present case, the issue by His Excellency, the President of the Proclamation was undoubtedly done “under colour of office” of the President.
The 2nd added Respondent submitted that the Proclamation is not subject to judicial review and, further, “the basis on which His Excellency, the President formed an opinion to dissolve Parliament is a political decision which your Lordship’s court has no jurisdiction to inquire into”.
However, this submission too is countered by the aforesaid rule that while His Excellency‘s decision to issue proclamation may have been a political decision, the power to dissolve Parliament is specified in the Constitution, and, therefore, this Court has both the power and the duty to examine whether the issue of proclamation was in accordance with the Constitution.
The provisions of the Constitution relating to dissolution
All counsel have agreed that, in essence, there are three provisions of the Constitution which have to be considered when deciding the applications before us. They are Article 33 (2), Article 62 (2) and Article 70. The Petitioners contend that Article 48 (1) and Article 48 (2) also support their cases. The Hon. Attorney General and the added Respondents disagree with that contention.
The Petitioners’ position is that while Article 33 (2) (c) only recognises and vests in the President the power to dissolve Parliament, the only manner in which the President may exercise that power is specified and limited by the provisions of Article 70.
The Petitioners go on to submit that the overarching provision specifying the manner and method of the exercise of the President's power to dissolve Parliament and controlling that power is Article 70 and, in particular, Article 70 (1) which specifies that the only way the President may dissolve Parliament is by the issue of a Proclamation and the Proviso to Article 70 (1) which stipulates that no such Proclamation can be issued until the expiration of four and a half years from the date of the first meeting of that Parliament unless not less than two thirds of the Members of Parliament (including those not voting) have by a resolution requested the President to dissolve Parliament, and the President is of the view that such request should be acceded to.
The Petitioners submit that there is no difference in the meaning of Article 62 (2) in the English language and the same Article in the Sinhala language. They submit that Article 62 (2) in the English language is couched in one long sentence while Article 62 (2) in the Sinhala language says the exact same thing as Article 62 (2) in the English language but in three separate sentences.
The Petitioners submit that the fact that Parliament can only be dissolved under the provisions of Article 70 is reflected and recognised in Article 48(1) and Article 48 (2) since these Articles which refer to the dissolution of Parliament by the President “in the exercise of his powers under Article 70" and to no other provision in the Constitution under which the President could have dissolved Parliament.
The submissions of the Hon. Attorney General, the Added Respondents and the Intervenient Petitioners
The Hon. Attorney General and the added Respondents submit that Articles 33 (2) (c), Article 62 and Article 70 should be read and understood in the following way:
(a) Article 33 (2) (c) has been specifically included by the 19th Amendment as a new power vested in the President to summon prorogue and dissolve Parliament at his discretion and which can be exercised independent of the restraints set out in Article 70(1). They highlight that Article 33 (2) of the 1978 Constitution prior to the 19th Amendment had no provision referring to the President‘s power to summon, prorogue and dissolve Parliament.
They submit that Article 33 (2) (c) formulates and recognises a sui generis and overarching “executive-driven” dissolution of Parliament by the President which is independent of the power of dissolution referred to in Article 70 (1) and is not subject to the limits and restraints specified by Article 70 (1).
Decision
The decision in this case rests on the correct manner in which Article 33 (2) (c), Article 62 and Article 70 of the Constitution are to be read, understood and applied. The Petitioners complain that the Proclamation marked - P1 has been issued ultra vires and in contravention of the powers and procedures set out in these Articles and that, therefore, their fundamental rights guaranteed by Article 12 (1) of the Constitution have been violated.
When interpreting provisions in a Constitution, a Court must approach its task keeping in mind that the document before the Court is the foundation, charter of governance and guiding light of the nation. The Court is duty bound to carry out that task in a manner which correctly understands and interprets the provisions of the Constitution so as to uphold the Rule of Law and constitutional certainty. The Court must remain alive to the need to understand and apply the Constitution in accordance with the intention of its makers and also take into account social, economic and cultural developments which have taken place since the framing of the Constitution.
It is to be kept in mind that the task of interpreting a statute must be done within the framework and wording of the statute and in keeping with the meaning and intent of the provisions in the statute. A Court is not entitled to twist or stretch or obfuscate the plain and clear meaning and effect of the words in a statute to arrive at a conclusion which attracts the Court.
A guiding principle when a Court interprets the Constitution is that the Court must adopt an approach which enforces the Rule of Law, which is one of the fundamental principles upon which our Constitution is built.
A related principle is that our Law does not recognise that any public authority, whether they be the President or an officer of the State or an organ of the State, has unfettered or absolute discretion or power.
In these circumstances, the inescapable inference is that the detailed provisions set out in Article 70 with regard to the manner and method of the exercise of the President's power of summoning, proroguing and dissolving Parliament and the restrictions and limits placed on that power must be read together with and are inextricably linked to the power referred to in Article 33 (2) (c) of the Constitution.
The resulting conclusion must be that the President's power of summoning, proroguing and dissolving Parliament referred to in Article 33 (2) (c) of the Constitution can only be exercised under and in terms of the scheme set out in Article 70 and is circumscribed and limited by the provisions of Article 70 and can be exercised only within and in conformity with the provisions of Article 70.
This conclusion is fortified by the wording of Article 48 (1) and (2) which refer to the President dissolving Parliament acting “in the exercise of his powers under Article 70” and contemplate no possibility of the President having dissolved Parliament without reference to Article 70.
Accepting the Respondent‘s contention that the power of issuing a Proclamation summoning, proroguing or dissolving Parliament under Article 33 (2) (c) and ignoring the provisions of Article 70, will render the entirety of Article 70 redundant and superfluous and thereby offend the rule that statutory interpretation must ensure that no provision of the Constitution is ill-treated in that manner.
President is subject to the Constitution and the law
It must also be stressed that, as set out earlier when identifying the relevant principles of the law and statutory interpretation, this Court has, time and again, stressed that our law does not permit vesting unfettered discretion upon any public authority whether it be the President or any officer of the State.
The suggestion that Article 33 (2) (c) vests in the President an unfettered discretion to summon, prorogue and dissolve Parliament at his sole wish and without reference to the clear and specific provisions of Article 70 is anathema to that fundamental rule and therefore must be rejected. As this Court has emphasized on several occasions, the President is subject to the Constitution and the law,and must act within the terms of the Constitution and the law. As this Court has also stated on several occasions, the guiding principle must be the furtherance and maintenance of the Rule of Law.
The submission made on behalf of the Hon. Attorney General and the added Respondents runs counter to that principle and must be rejected.
It is also important to note that Article 70 (1) in the original 1978 Constitution prior to the 19th Amendment stated “The President may, from time to time, by Proclamation summon, prorogue and dissolve Parliament.” After the 19th Amendment, Article 70 (1) reads “The President may, by Proclamation summon prorogue.” The words “from time to time” which appeared in the original 1978 Constitution have been removed from Article 70 (1). It is seen that Article 70 (1) only uses the word “may” and refers to the President’s ability to issue a Proclamation which summons, prorogues or dissolves Parliament. Article 70 (1) does not expressly state that the President has the power to do so. It is apparent that the 19th Amendment to the Constitution has regularised this omission by expressly stating in Article 33 (2) (c) that the President has this power. It is clear that Article 33 (2) (c) is only a recognition of President’s power to summon, prorogue and dissolve Parliament under and in terms of Article 70.
The conclusion must be that the “sooner” dissolution of Parliament referred to in Article 62 (2) is nothing but a recognition of the possibility that the President could have dissolved Parliament under the provisions of Article 70 (1) prior to expiry of the term of five years. Thus, the added Respondents’ contention that Article 62 (2) vests an independent and additional method of dissolving Parliament free from the restricitons of Article 70 (1), must be rejected.
We fail to see a real difference in the meaning of the phrase in English and the phrase in Sinhala. Article 70 (5) (b) in both languages only stipulates what should be done by the President after Parliament is dissolved by operation of Article 62 (2) at the end of five years – i.e: stipulate that the President must issue a Proclamation fixing the date of elections and summoning Parliament. Rather than vesting a ‘power’ in the President to dissolve Parliament, the said provision imposes ‘an obligation' on the President to forthwith fix dates for elections and for the newly elected Parliament to meet when a Parliament stands dissolved upon the completion of its term. We see nothing in these words in Sinhala which suggest a different meaning from the words in English in Article 70 (5) (b).
The added Respondents’ attempts to make out non-existent differences in the meaning of the words in Articles 62 (2) and 70 (5) in Sinhala and English have no substance and are a strained effort to twist or stretch the meaning of words which are readily understood to be the same when the plain and ordinary meaning of these words in both languages are accorded to them.
Thus, the conclusion must be that Article 62 (2) does not vest any separate or independent power in the President to dissolve Parliament outside the mechanism specified in Article 70 (1).
Thus, this Article stipulates in no uncertain terms that the President shall not dissolve Parliament during the first four and a half years from the date of its first meeting unless the President has been requested to do so by a resolution passed by not less than two thirds of the members of Parliament.
Thus, the second paragraph of Article 70 (1) makes it crystal clear that the power of the President to dissolve Parliament by Proclamation is subject to and limited by the aforesaid two conditions.
Therefore, since as concluded earlier, Article 33 (2) (c) must be read with and is inextricably linked to Article 70, the power of the President to dissolve Parliament which is referred to in Article 33 (2) (c) is subject to and limited by the aforesaid two conditions stipulated in second paragraph of Article 70 (1).
By operation of the second paragraph of Article 70 (1), the President cannot dissolve Parliament during the first four and a half years of its term unless he has been requested to do so by a resolution passed by not less than two thirds of the Members of Parliament [including those not present]. Even upon receipt of such a resolution, the President retains the discretion to decide whether or not he should act upon such a request.
After the expiry of four and a half years of Parliament‘s term, the President is entitled, at his own discretion, to dissolve Parliament by issue of a Proclamation.
Upon the expiry of five years from the date of its first meeting, Parliament will dissolve ‘automatically’ and without any intervention of the President by operation of Article 62 (2).
Upon such dissolution at the end of the five year term, the President must act under Article 70 (5) (b) and forthwith issue a Proclamation fixing a date for the General Election and summoning the new Parliament to meet within three months of that Proclamation.
To my mind, the effect of this interpretation also accords with the duty cast on this Court to read and give effect to the provisions in the Constitution so as to uphold democracy, the Rule of Law and the separation of powers and ensure that no unqualified and unfettered powers are vested in any public authority.
Therefore, on an application of the reasoning and conclusions set out above, I am compelled to hold that the Proclamation marked -P1has been issued in contravention of the provisions of Article 70 (1) of the Constitution and is, therefore, null and void.
General Election will be valid only if it is lawfully held
It has been said by some of the added Respondents that refusing the Petitioners‘ applications will enable a General Election to be held in pursuance of the Proclamation marked -P1 and, therefore, justified because it will give effect to the franchise of the people. That submission is not correct. Giving effect to the franchise of the people is not achieved by the Court permitting a General Election held consequent to a dissolution of Parliament which has been effected contrary to the provision of the Constitution. Such a General Election will be unlawfully held and its result will be open to question.
A General Election will be valid only if it is lawfully held. Thus, a General Election held consequent to a dissolution of Parliament which has been done contrary to the provisions of the Constitution will not be a true exercise of the franchise of the people.
The Proclamation has been issued outside legal limits and has resulted in a violation of Petitioner‘s rights both in his capacity as a Parliamentarian legitimately elected to represent the People and in the capacity of a citizen who is entitled to be protected from any arbitrary exercise of power.
For the reasons set out above, I hold that the Petitioners’ rights guaranteed under Article 12 (1) of the Constitution have been violated by the issue of the Proclamation filed with the petition in SC FR 351/2018 and make order quashing the said Proclamation and declaring the said Proclamation null, void ab initio and without force or effect in law.
This judgement and the aforesaid orders will apply to applications in nos. SC FR 351/2018. SC FR No. 352/2018, SC FR No. 353/2018, SC FR No. 354/2018, SC FR No. 355/2018, SC FR No. 356/2018, SC FR No. 358/2018, SC FR No. 359/2018, SC FR No. 360/2018, and SC FR No. 361/2018 in which the same issues as those in this application are before this Court.
