The constitutional crisis and need for general election 

By DR. W. D. RODRIGO-December 5, 2018, 8:54 pm

President’s Counsel, Former Principal of Sri Lanka Law College,
President of the ‘Association of Professionals for Sri Lanka’.

The present constitutional crisis in Sri Lanka that originated with the dissolution of Parliament by the President on 9th November 2018 has aroused unprecedented interest of the people. This is a good omen as the Constitution imposes a fundamental duty on every Sri Lankan to uphold and defend the Constitution and the law.

Several fundamental rights applications had been filed in the Supreme Court on 12th of November 2018 seeking inter alia-

a. To quash the orders contained in the Extraordinary Gazette notification bearing number 2096/70 dated Friday 09th November, 2018 which dissolved the Parliament; and

b. Interim relief including a Stay Order against the Respondents from acting in terms of the said Extraordinary Gazette.

After hearing the petitioners, the intervenient petitioners, and the Attorney General, the Supreme Court granted leave to proceed to the Petitioners in all the said fundamental rights applications and issued interim orders operative until 7th December 2018 staying the operation of gazette extraordinary No. 2096/70 dated 9th Nov 2018. The Court also issued an interim order restraining the Respondents and or their servants, subordinates and agents from acting in terms of the said gazette. This second interim order is also operative only until 7th December 2018.

It is important to remember that the interim order of the Supreme Court is only a stay order and not an order quashing the said gazette. Therefore, until such Extraordinary Gazette is nullified/quashed or declared null and void, the said proclamation stands valid. However, the continuation of the proceedings of Parliament in disregard of the stay order undermines the authority and the legal effect of the stay order made by the Supreme Court. In Sri Lanka sovereignty is in the People and is inalienable. Nevertheless, as a representative democracy the exercise of the legislative, executive and judicial power which comprise three of the main components of the People’s sovereignty have been entrusted to the three organs of government.

The three organs of government, namely, the legislature, the executive and the judiciary, must exercise the powers entrusted to them in trust for the People. In the event of any doubt it is the duty of the organ of government concerned to seek a clarification and/or opinion from the Supreme Court, which has the sole and exclusive jurisdiction to interpret the Constitution. The failure on the part of the authorities to do so in the present context amounts to a serious breach of the People’s trust reposed on them and undermining of the People’s sovereignty. This may also have serious consequences. Since this may have adverse effects on the legitimacy of parliamentary proceedings conducted between the date of the interim stay order (13th November 2018) and date of the final decision of the Supreme Court, the true meaning of a stay order must be examined in the light of authorities. In Billimoria vs. Minister of Lands and Land Development & Mahaweli Development reported in 1978-79-80 1 Sri Lanka Law Reports 10 the Supreme Court held that:

"A stay order is an interim order and not one which finally decides the case."

In the same case Neville Samarakoon C. J. held at page 15 that:

"The interests of justice required that a stay order be made as an interim measure. It would not be correct to judge such orders in the same strict manner as a final order. Interim orders by their very nature must depend a great deal on a judge’s opinion as to the necessity for interim action"

Neville Samarakoon C. J.’s view may be substantiated with the decision of the Supreme Court of India in B.P.L. Ltd. And Others vs. R. Sudhakar And Others 2004 Supp (2) SCR 414, where the Court has distinguished between quashing of an order and stay of operation of an order in the following words at Page 5:

"While considering the effect of an interim order staying the operation of the order under challenge, a distinction has to be made between quashing of an order and stay of operation of an order. Quashing of an order results in restoration of the position as it stood on the date of passing of the order which has been quashed. The stay of operation of an order does not, however, lead to such a result. It only means that the order which has been stayed would not be operative from the date of passing of the stay order and it does not mean that the said order has been wiped out from existence."

It appears that the rationale behind his Lordship Neville Samarakoon C. J.’s dictum in the above mentioned case is the necessity to ensure that the final order of the Court would not be rendered nugatory by the conduct and acts of the parties and their servants, subordinates and agents between the time of the interim order and final order.

As the Parliament has been dissolved by proclamation, the interim order staying the operation of the same cannot have the effect of re-summoning/re-convening of the Parliament, which continues to stand dissolved until the nullification or quashing of the said proclamation. The true legal effect of the said interim orders is to stay the operation of gazette extraordinary No. 2096/70 dated 9th Nov 2018 and to restrain the Respondents and their servants, subordinates and agents from acting in terms of the said gazette until 7th December 2018. Consequently neither the President nor the Elections Commissioner can act in disregard of the said interim order of the Supreme Court.

Serious disagreement has sprung between the Legislature and the Executive President as the Parliament continued to meet and conduct its business. These disagreements have caused a political instability in the country. The political instability has distracted foreign investors and investors in the share market. Inability to attract foreign investors and the fall of the share market has had an adverse effect on the national economy of the country, with an adverse effect on every aspect of community life. The Rupee depreciates and the Dollar appreciates to unprecedented levels. This situation has caused serious problems of inflation, unemployment, underemployment and cost of living. More than anything else, people have lost faith and confidence in the Constitution and the democratic system of government.

The failure to give effect to the stay order of the Supreme Court has resulted in the Parliament not being properly constituted. This situation has an adverse impact on the basic structure of the Constitution of the Democratic Socialist Republic of Sri Lanka relating to the sovereignty of the People, particularly the legislative sovereignty of the People as declared in Articles 3 and 4 (a) of the Constitution.

In the circumstances the rights of the People of Sri Lanka to exercise the legislative sovereignty through a validly constituted Parliament would be violated contravening Articles 3 and 4 (a) of the Constitution. This would deprive the People of Sri Lanka of their right to equal protection of the law guaranteed by Article 12 (1) of the Constitution. In the circumstances the fundamental rights of the citizens of Sri Lanka to equal protection of the law guaranteed by Article 12 (1) have been violated and will continue to be violated.

In Faiz vs. Attorney General and Others reported in [1995] 1 Sri L. R. 372 Perera J. stated at 404:

"It is clear that Article 126(4) gives this Court very wide powers in this regard. I am of the view that responsibility under Article 126 would extend to any respondent who has no executive status but is proved to be guilty of impropriety, connivance or any such similar conduct with the executive in the wrongful acts violative of fundamental rights".

Judging from the aggressive manner in which Parliamentary proceedings are conducted it appears that the Parliament is unlikely to be able to sort out this Constitutional issue within the Parliament. Hence the most appropriate solution is to seek a fresh mandate at a general election from the People who have the sovereign power of this country.