2015-08-31 - petition on national list in sl
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IN THE SUPREME COURT OF
DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an application under and in terms of Articles 125 & 126 of the Constitution of Republic of Sri Lanka
D E W Gunasekara General Secretary Communist party of Sri Lanka 91, Dr N M Perera Mawatha Colombo 8
Petitioner Vs
SC/FR/344/2015 1. Commissioner of Elections Elections Secretariat, P.O. Box 02, Sarana Mawatha, Rajagiriya
2. Susil Premajayantha and now Wishwa Warnapala General Secretary – UPFA 307, T B Jayah Mawatha Colombo 10 3. Kabir Hashim General Secretary United National Party 400, Sirikotha Pitakotte, Kotte 4. Tilvin Silva General Secretary Janatha Vimukthi Peramuna
464/20, Pannipitiya Road, Pelawatta, Battaramulla 5. S Thurairajasingham General Secretary, Ilankai Tamil Arasu Kadchi 30, Martin Road Jaffna 6. U J Tilanga Sumathipala Member of Parliament (UPFA) Parliament Approach Road
Sri Jayawardenepura Kotte
7. B Mahinda Samarasinghe Member of Parliament (UPFA) Parliament Approach Road Sri Jayawardenepura Kotte 8. S B Dissanayake Member of Parliament (UPFA) Parliament Approach Road Sri Jayawardenepura Kotte 9. Lakshman Yapa Abeywardena Member of Parliament (UPFA) Parliament Approach Road Sri Jayawardenepura Kotte 10. Angajan Ramanathan Member of Parliament (UPFA) Parliament Approach Road Sri Jayawardenepura Kotte 11. A M H M Lebbe Member of Parliament (UPFA) Parliament Approach Road Sri Jayawardenepura Kotte
12. G Vijith Wijayamuni Zoysa Member of Parliament (UPFA) Parliament Approach Road Sri Jayawardenepura Kotte 13. M H M Navavi Member of Parliament (UNP) Parliament Approach Road Sri Jayawardenepura Kotte 14. Sunil Handunnnethi Member of Parliament (JVP) Parliament Approach Road Sri Jayawardenepura Kotte 15. Attorney General Attorney General’s Department Colombo 11
Respondents
To: THE HONOURABLE CHIEF JUSTICE AND THE OTHER JUDGES OF THE SUPREME COURT OF
THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA
On this 31st day of Aug 2015
The Petition of the Petitioner above-‐named appearing by Nagananda Kodituwakku,
Attorney-‐at-‐Law, states as follows:-‐
1. The Petitioner is a citizen of Sri Lanka and has locus standi in the above matter as pleaded.
He is the General Secretary to the Communist party of Sri Lanka and the 3rd nominee in the
National list submitted to the 1st Respondent by the 2nd Respondent under Article 99A of
the Constitution concerning the Parliamentary Elections -‐ 2015.
2. The 1st Respondent is the Commissioner of Elections and the 2nd Respondent is the General
Secretary of the United People's Freedom Alliance (UPFA) and the 3rd is the General
Secretary of the United National Party (UNP), 4th Respondent is the General Secretary of the
Janatha Vimukthi Peramuna (JVP), and the 5th Respondent is the General Secretary of the
Tamil National Alliance and 6th Respondent is the Attorney General of the Republic of Sri
Lanka and the 6th Respondent is named as a party to this application for the purpose of
serving notice only.
3. The Petitioner makes this instant application under and in terms of Article 125 and 126 (2)
of the Constitution of Sri Lanka.
4. In this instant application, the Petitioner seeks to challenge, inter alia;
a) the clause inserted in the Article 99A (14th Amendment to the Constitution), which
reads as “… being persons whose names are included in the list submitted to the
Commissioner of Elections under this Article or in any nomination paper submitted in
respect of any electoral district by such party or group at the that election…” which
permitted the 2nd, 3rd, 4th and 5th Respondents to nominate rejected candidates,
who had defeated at the General Election – 2015, but had been appointed as elected
Members of Parliament by the 1st Respondent.
b) and for a declaration that the process adopted to insert the said clause was
improper and unlawful, hence ab initio void. The Petitioner states that the said
clause, which effectively delegates people’s power of franchise to the party
secretaries, has been enacted in an inappropriate manner, abusing the people’s
inalienable Executive and Legislative Powers enshrined in Article 3 and 4 of the
Constitution, thereby deliberately circumventing the mandatory requirement of
obtaining people’s approval at a referendum as set out in the Article 83 of the
Constitution, where the certification by the President is required to make any such
bill to become law.
Dissolution of the Parliament
5. The Petitioner states that on 26th June 2015 the Parliament was dissolved by the Extant
Executive President, proclaiming the nomination period (beginning from 6th July 2015 to
13th July 2015) and fixing a date for the Parliamentary Elections to be held on 17th August
2015.
A true copy of the gazette extraordinary No 1920/38 dated 26th June 2015 published by the
Secretary to the Executive President marked P1 is attached hereto.
Calling for nominations for the Parliamentary Elections -‐ 2015
6. The Petitioner states that within the nomination period the recognised Political parties had
submitted their nominations for the General Elections of the Members of the Parliament to
the 1st Respondent. And on 13th July 2015, the 1st Respondent gazetted (No 1923/3) the
names of those candidates for the information of the voters.
The part of the true copy of the said Government Gazette No 1923/3 dated 13th July 2015
published by the 1st Respondent, which is relevant to this application marked P2 is attached
hereto
Submission of National List Candidates
7. The Petitioner states that as required by the Article 99A of the Constitution, the recognised
political parties had submitted their lists of persons qualified to be elected as Members of
Parliament during the Nomination Period, to the 1st Respondent, which the 1st Respondent
gazetted (No 1923/2 of 13th July 2015) for the information of the voters so that they would
know that some of the candidates in the list published by the 1st Respondent were likely to
be elected as MPs through the National List. The Petitioner states that his name had been
listed 3rd in the said list submitted by the 2nd Respondent to the 1st Respondent
A true copy of the Gazette Extraordinary No 1923/2 dated 13th July 2015 published by the 1st
Respondent marked P3 is attached hereto.
8. The Petitioner state that on 17th August 2015 the General Election was held as scheduled.
Thereafter on 19th Aug 2015, the 1st Respondent declared the final results of the
Parliamentary Election -‐ 2015 with the names of the successful candidates elected by the
People. This was published by the Government Gazette No 1928/3 of 19th August 2015.
A true copy of the Government Gazette No 1928/3 dated 19th August 2015 published by the 1st
Respondent marked P4 is attached hereto
9. The Petitioner states that thereafter, further to a Notice served by the 1st Respondent, the
2nd, 3rd 4th and 5th Respondents submitted their respective lists of nominees under Article
99A of the Constitution, to fill the seats allocated to them through the National List. The
combined list so presented by the political parties did contain the names of several
candidates who had been defeated at the General Election – 2015. Thus their names did not
appear in the gazette published by the 1st Respondent marked P4. Those names are given
below.
Name Political Party Electoral-‐Distric
U J Tilanga Sumathipala UPFA Colombo
B Mahinda Samarasinghe UPFA Kalutara
S B Dissanayake UPFA Kandy
Lakshman Yapa Abeywardena UPFA Matara
A Ramathanathan UPFA Jaffna
A M H M Lebbe UPFA Batticaloa
G Vijith Wijayamuni Zoysa UPFA Monaragala
M H M Navavi UNP Puttalam
Sunil Handunnethi PLF Matara
Kathiragamathamby Thurairathasingham ITAK Trincomalee
Shanthi Srikandarasa ITAK Vanni
10. The Petitioner states that his name was listed 3rd in the original National List (P3)
submitted by the 2nd Respondent (UPFA) to the 1st Respondent but did not appear in the
list of persons nominated by the 2nd Respondent to fill the seats allocated to the UPFA
under the National list. These names so nominated by the respective political parties
were accepted by the 1st Respondent and were declared as MPs elected through the
National List. The Petitioner states that on 21st of Aug 2015 the names of the persons so
elected through the National List were gazetted by the 1st Respondent in the Gazette No
1928/25 dated 21st August 2015 and the Gazette No 1929/4 dated 24th Aug 2015.
A true copy of the Government Gazette No 1928/25 dated 21th August 2015 and the
Gazette No 1929/4 dated 24th Aug 2015 published by the 1st Respondent marked P5 and
P6 are attached hereto
11. The Petitioner states that the issuance of the P5 and P6 by the 1st Respondent, was
based on lists submitted by the 2nd 3rd 4th and 5th Respondents, which also contained
the names of several defeated candidates. This is in total disregard of the National List
gazetted (P3) by the 1st Respondent and tantamount to blatant abuse of people’s
sovereign powers, including the power of franchise enshrined in Article 3 of the
Constitution. The Petitioner states that in this backdrop the people have felt that they
have been betrayed and their intelligence has been insulted. The public outcry became
so intense as their sovereign powers had been taken away by the 2nd, 3rd, 4th and 5th
Respondents, with no such mandate given to them by the people at a referendum which
is mandatory under Article 83 of the Constitution.
The people’s anger and disgust over this improper act have been amply demonstrated in
both print and electronic media, and evidence of such protests published in the media are
attached hereto marked P7, P8, P9, P10, P11 and P12.
12. The Petitioner states that based on his long political career and experience in the
parliamentary affairs, he had launched further inquiries into the manner which this
provision (Article 99A) had become law. He referred to the Parliamentary debate held
on 04th May 1988 during which, a number of Opposition MPs, including himself had
expressed their concerns and dismay about the proposed National List concept and the
surreptitious manner it was made law, within two days from the first reading of the bill
(03rd May 1988) to pass it as 14th Amendment to the Constitution on the following day
(04th May 1988).
The true copies of the Hansard dated 3rd May 1988, the date on which the bill was
presented by the Prime Minister marked P13, the Bill dated 3rd May 1988 Presented by the
Prime Minister marked P14, and the Parliamentary Debate dated 04th May 1988 the date
on which the bill was made law marked P15 are attached hereto.
Apparently there had been two bills on the 14th Amendment
13. The Petitioner states that he believes that the said bill (P13) undermines, the very
foundation of the democratic governance. The Petitioner strongly believes that there
had been two bills on the 14th Amendment in circulation, which had been brought to
light by the legislators in the Opposition, during the debate on the 14th Amendment held
on 04th May 1988, forcing the government (Prime Minister) to make reference to that
effect;
a) one with the clause referred to in paragraph 04 above shown, which permitted
the defeated candidates to enter the Parliament through the National List
and
b) another sans the said clause.
The Petitioner states, that had the bill referred to in (a) above, been referred to the
Supreme Court, the Court would have promptly identified the inconsistency of the said
proviso with the Article 3 of the Constitution, as the Article 83 of the Constitution is
clearly a bar to any amendment to the Constitution, that is designed to take away
sovereign rights of the people enshrined in the Article 3 of the constitution, without
people’s approval obtained at a referendum.
14. The Petitioner states that the Prime Minister, R Premadasa himself had admitted that
there were two bills on the 14th amendment, one different from the Amendment he
spoke about in the House of Parliament. He said ‘… Mr Speaker, what is this Fourteenth
Amendment to the Constitution? I have to raise this question, because there was a
discussion of a Fourteenth Amendment, which as I came to understand later, is different
from the amendment to the Constitution that I speak of, in this instance…”.
The relevant part of the Prime Minister’s speech is marked P16 in the Hansard Record
dated 04rd May 1988 marked P15
15. The Petitioner states that the study conducted by him, indicates that the Bill titled
Fourteenth Amendment was presented to the Parliament on 03rd May 1988 by the then
Prime Minister, R Premadasa as an URGENT BILL. The page 10 of the Bill confirms this
fact.
The relevant part of the Bill (P14) is marked as P17
National list an act of deliberate deception?
16. The Petitioner states that on the National List concept the Prime Minister further stated
that “… Mr Speaker, these 29 seats will be allocated to the different Parties contesting an
election, in proportion to the votes received by each such party at the National Level. The
names of these party nominees are known BEFORE HAND. In fact their names are
published in the Gazette immediately after the closing of the Nominations. Therefore, the
voters are aware of the identity of the candidates of the different Parties who are to be
elected as National Members…”
The relevant part of the Prime Minister’s speech is marked P18 in the Hansard Record
dated 04rd May 1988 marked P15
17. The MP, Anil Munasinghe probably had a different copy of the Bill, [apparently the bill
referred to in paragraph 13 (a) above], which mentioned that, even the rejected MPs
could be nominated as MPs by the Party Secretaries and declared elected AS MPs by the
Commissioner of Elections. He went on to state that, “… The people to be nominated
for the 29 seats were to be nominated together with other names for the General Election,
now you have added that once the 196 Members are declared elected, the Party
Secretary can nominate, for the that number of seats that you are entitled to, that number
of people from that list of 29 which you have sent or from those who have already been
nominated. We are against this principle, the second part being added, because you
are bringing in people who are defeated in the General Election through the back door
into Parliament. Why do you want to do this? (Interruption) If they are good they would
not have been defeated, surely it is a bad principle to bring a person who has been
defeated…”
The relevant part of MP Anil Munasinghe’s speech is marked P19 in the Hansard Record
dated 04rd May 1988 marked P15
18. The Petitioner states that participating in the debate the MP, Dinesh Gunawardana,
made a startling revelation. He said that the Supreme Court has determined that list of
names under the National list shall be published in the Gazette, during the nomination
period and not to permit the Party Secretaries to keep the list of names as a confidential
document in their custody. The MP further stated that the real purpose of bringing in 29
people was not to bring people with wisdom and honestly but surely to bring
millionaires engaging in various anti-‐social actions and funding election campaigns of
major political parties, through the National List. The MP said that this would the
beginning of a very unfortunate situation in the legislature of Sri Lanka.
The verbatim of MP Dinesh Gunawardana’s speech is reproduced below
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zz''' fldaám;sfhda fï md¾,sfïka;=jg tkafka ke;sj wfma rfÜ iudc wd¾Ólh ilia lr .kakd wkaou fmakjd' leisfkda la,í ldrfhda" f¾ia nqls ldrfhda " fjk;a fjk;a cdjrï ldrfhda md¾,sfïka;=jg weú,a,d b`o.;a;dg miafia isoaOjk foa óg jvd Nhdklhs' Bg wjia:dj ;uhs fï wdik 29 ka ,efnkafka' f,dl= foaYmd,k mlaI fïl mdúÉÑ lrkjd" wksjd¾hfhkau' wmg md¾,sfïka;= b;sydifhka fïl meyeÈ,shs' fifkÜ uka;%S uKAv,hg taldf,a heõfõ fldfyduo@''' fifkÜ uka;%S uKAv,hg .sh whf.ka jeäfokd heõfõ mlaIhg ÿka uqo,a wdOdr Woõ u;hs''''''ZZ
The relavant part of the MP, Dinesh Gunawardena’s speech is marked P20 in the Hansard
Record dated 04rd May 1988 marked P15
19. The Petitioner states that he himself had made the following observations during the
debate (04th May 1998), condemning the move as a travesty of the people’s sovereign
powers by the Executive, which is reproduced below.
“… Now, the other thing is you cut off at the bottom level by the device of this cut-‐off point
and then bring in new people through another device. You have the device of the bonus
seat system. The really elected people, although they would have secured less than 12 ½
per cent, are really elected by the people. So those elected by the people you shut out by the
cut-‐off at the bottom level and through another way, through the device of the bonus
system, you bring in unelected people. That is why it distorts. This is monstrously
undemocratic. It will lead to very undemocratic means of voicing opinion. That is why I am
warning that political parties cannot be shut out of politics by these artificial and
mechanical devices. The law can exclude them from entering Parliament, but no law can
exclude any political party from politics. Therefore, in the light of the experience that we
have gained in the last eleven years, I would like the Hon’ Members of the Cabinet to learn
a lesson. I think that they never learn any lesson like French Bourbons. Even though their
own idiotic blunders that they have made for the last eleven years they never learn any
lessons. So at least learn a lesson after having ruled this country, this nation, for eleven
years, after putting the whole country, the nation into a state of fear, insecurity, chaos-‐
economic chaos and political chaos. The psychosis of fear has become a way of life. And not
having learn this lesson, they are trying again, as correctly pointed out by the Hon’
Member for Maharagama, by these artificial and mechanical devices or other to protect
and safeguard their interests…”
The relevant part of the Petitioner’s speech is marked P21 in the Hansard Record dated
04rd May 1988 marked P15
20. The Petitioner states that the process followed by the government to have the 14th
Amendment passed had made the democracy in this country a mockery, absolutely
denying the people of their democratic rights to know the content of the Bill, before it
was placed on the Order Paper of the Parliament and the democratic right of the people
to challenge it before the Judiciary.
21. The Petitioner states that in order to avoid the bill being challenged by the people the
government had deliberately followed a process, with a written communication served
on the Supreme Court, that the Cabinet of Ministers, had considered that it was
necessary in the National Interest to pass the said 14th Amendment bill as an URGENT
BILL, and had adopted the provisions of the Article 122 of the Constitution. The
Petitioner states that this process had completely shut out the application of Article 78
of the Constitution, which requires that every Bill shall be published in the Gazette at
least seven days before being placed on the Order Paper of Parliament.
22. The Petitioner states that the Executive President, entrusted to exercise people’s
Executive power had abused his office by resorting to this blatantly undemocratic
process, denying the citizens of their democratic right to know the content of the Bill.
And also keeping the citizens in absolute dark about the content of the bill until it was
placed on the Order Paper on 03rd of May 1988, only after the Supreme Court’s
determination on the bill had been obtained. The Petitioner states that this act amounts
to a clear miscarriage of justice as the said process had completely denied the citizens of
their right to challenge the Bill unlawfully usurping the people’s franchise power
enshrined in the Article 3 of the Constitution. It is an entrenched provision, which
effectively prohibits such a bill becomes law without people’s approval is obtained at a
referendum, which is mandatory under Article 83 of the Constitution.
23. The Petitioner states that introducing the National List concept to the parliamentary
democracy in this country, the then Prime Minister, R Premadasa said as follows.
‘… There is a misconception, Mr Speaker that all these 29 National Members will be chosen
from the Party that receives the highest number of votes at the National Level. This is
totally unfounded. These 29 seats will be allocated the different parties contesting in
election., in proportion to the votes received by each such party at National level. The
names of party nominees are known beforehand. In fact their names are published in the
Gazette immediately after the closing nominations. Therefore the voters are aware of the
identity of the candidates of the different parties who are to be elected as National
Members… ’
The relevant part of the statement made in this regard during the debate of the 14th
Amendment in the parliament on 04th May 1988 by Mr R Premandasa, the Prime Minister
is marked P18 in the document marked P15.
The Petitioner states that, this statement by Prime Minister suggests that he had been
referring to the Amendment referred to in paragraph 13 (b) above and not the one with
the clause referred to in paragraph 04 above, which permitted the defeated candidates
to enter the Parliament through the National List
24. The Petitioner states that the very purpose of the introduction of the ‘National List’ as
claimed by the government was to get the people who will represent the whole
spectrum of the society, to promote the National Perspectives, community-‐wise,
religion-‐wise or any other sectarian portion in the legislature. The Petitioner states that
this desire has been completely defeated with the clause inserted to the Article 99A of
the Constitution.
The relevant part of the speech made in this regard during the debate of the 14th
Amendment in the parliament on 04th May 1988 by Mr Lalith Athulathmudali, Minister of
National Security is marked P22 in the document marked P15.
Infringement of fundamental rights of the Petitioner
25. The Petitioner states that the clause added to the Article 99A referred to in paragraph 4
above has denied his legitimate expectations to be elected as a Member of Parliament
through the National List referred as P3
26. The Petitioner states that in the aforesaid circumstances, the Petitioner is entitled to a
declaration that his right to equality and equal treatment before law under Article 12(1)
has been violated by the election of defeated candidates as MPs by the 1st Respondent.
27. The Petitioner, reserves the right to furnish any further material as the Petitioner might
be able to obtain including the certified copies, which may pertain to the aforesaid
matters but not currently available in further proof thereof, including the determination
of the Supreme Court on the 14th Amendment which has been requested from the Chief
Justice by the letter dated 26th Aug 2015 by his Counsel, which is marked P23 and
attached hereto.
28. The Affidavit by Petitioner is appended hereto in support of the averments contained
herein and the Petitioner states that he has not invoked the jurisdiction of the Supreme
Court previously in respect of the matters pleaded herein and pleads that documents
P1 to P23 be deemed to be part and parcel hereof.
WHEREFORE, the Petitioner prays that Your Lordship’s Court be pleased to;
a. grant leave to proceed with this Application in the first instance;
b. declare that the insertion of clause to the Article 99A to the 14th Amendment to the
Constitution, which reads as “… being persons whose names are included in the list
submitted to the Commissioner of Elections under this Article or in any nomination paper
submitted in respect of any electoral district by such party or group at the that election…”
has been made by fraudulent means, completely deceiving the lawmakers and the
people of Sri Lanka, without adhering to the mandatory requirement stipulated in
Article 83 of the Constitution (as the said clause clearly is inconsistent with the
entrenched provision of Article 3 of the Constitution) and without obtaining people’s
approval at a referendum followed by a certification by the Executive President in
terms of the provisions of the Article 80 of the Constitution, hence ab initio void
c. declare that the 1st Respondent has violated the fundamental right guaranteed to the
Petitioner under Article 12 (1) of the Constitution by an administrative act, where the
1st Respondent had elected candidates who had been defeated at the General Election –
2015 as Members of Parliament outside the list of nominees submitted to the 1st
Respondent during the Nomination Period and gazette by the 1st Respondent for the
information of the voters and thereby had violated fundamental right of the Petitioner
for equality and equal protection of law guaranteed under Article 12(1) of the
Constitution
d. quash all the appointments of Members of Parliaments elected by the 1st Respondent
under the National list set out in the Gazette marked P5 and P6 published, whose
names had not been duly gazetted in the document marked P3 by the 1st Respondent
during the Nomination Period for the information of the voters
e. issue a mandatory order, compelling the 2nd Respondent to nominate the Petitioner
whose name has been duly gazetted (P3) for the information of the people (3rd in the
UPFA National List) prior to the General Election – 2015, and submit the Petitioner’s
nomination to the 1st Respondent to be declared as a Member of Parliament duly
elected under the National List.
f. grant costs of this Application; and
g. grant such other and further relief as to Your Lordships' Court shall seem fit and meet.
Counsel for the Petitioner