Petitions challenging EC decision to postpone PC elections: SC fixes to mention on 15 Nov. for suppo

By S.S. Selvanayagam

The Supreme Court yesterday (25) fixed to be mentioned on 15 November before the Chief Justice to support for fuller Bench to hear four Fundamental Rights petitions challenging the decision of the Elections Commission to indefinitely postpone the conducting elections of Provincial Councils which already stand dissolved.

The Bench comprised Justices B.P. Aluvihara and Anil Gooneratne.

Sanjeeva Jayawardena PC with Charita Rupasinghe appeared for Petitioners Ven. Omar Kassapa Thero and Ven. Galagama Dhammasiri Thero. Ali Sabry PC with Ruantha Cooray appeared for the Petitioner Dulles Alahapperuma. Gamini Marapana PC with Navin Marapana and Kausalya Molligoda appeared for Prof. G.L. Peiris and R.M.K. Jayaratne.

Additional Solicitor General Indika Demuni de Silva with Senior State Counsel Dr Avanti Perera appeared for the Attorney General.

Professor G.L. Pieris in his petition challenges the decision of the Elections Commission to indefinitely postpone to conduct elections

He is seeking an order from the Court to make order to take steps to conduct the election for the Sabaragumuwa, North Central and Eastern Provincial Councils.

He cited Elections Commission Chairman Mahinda Deshapriya, its members, Speaker of Parliament Karu Jayasuriya and the Attorney General as Respondents.

He states the postponing indefinitely the taking of steps in accordance with the Constitution and the law to conduct elections for several of the Provincial Councils which already stand dissolved by operation of Article 154E of the Constitution constitute an infringement of the Fundamental Rights of the Petitioner and of the people, guaranteed by Articles 10, 12(1) and 14(1)(a) of the Constitution.

He states the presently constituted Sabaragamuwa Provincial Council, duly elected by the people in the year 2012, stood dissolved on 27 September and the North Central as well as Eastern Provincial Councils too stood dissolved on 1 October.

The Petitioner states certain purported amendments surreptitiously introduced at the Committee Stage in Parliament, to the Bill entitled “Provincial Councils Elections (Amendment)” on or about the 20 September and passed by Parliament on the same day; and a narrow interpretation thereof by the Elections Commission has resulted in the postponement indefinitely of the due conduct of the Provincial Councils Elections including inter alia elections for the Sabaragamuwa, North Central and Eastern Provincial Councils.

The Petitioner states that the said Bill entitled “A Bill to amend the Provincial Councils Elections Act” was published in the Supplement issued on 10 July to Part II of the Gazette dated 7 July, and placed on the Order Paper of Parliament on or about 26 July.

The said Bill did not in its long title state that it was intended to be a Bill for the amendment of the Constitution, he states.

He states the provisions of the said Bill as placed on the Order Paper of Parliament pertained to certain amendments with regard to the representation of women in the Provincial Councils.

He states thereafter, another Bill entitled the “Twentieth Amendment to the Constitution” was published in the Supplement issued on 3 August to Part II of the Government Gazette dated 28 July, and placed in the Order Paper of Parliament on 23 August.

The Petitioner states that the said Bill entitled the “Twentieth Amendment to the Constitution” was challenged by a large number of petitioners including himself, before the Supreme Court, on the grounds inter alia that the said Bill seeks to empower Parliament to extend and/or curtail the term of one or more Provincial Councils elected by the people in the exercise of their franchise which is included in the inalienable sovereignty of the people, and the said Bill is motivated by political expediencies of the Government and is irrational, arbitrary and capricious and is patently lacking in bona fides.

He states the Supreme Court Determined in the said SC SD 20-32/2017 that clauses 2, 3 and 4 of the said Bill, i.e., all operative clauses thereof, is inconsistent with Articles 3, 4, 12(1) and 14(1) of the Constitution and requires the approval of the People at a Referendum by virtue of the provisions of Article 83.

He states the said Determination was communicated by the Supreme Court on or about 15 September and read in Parliament on 19 September.

Shortly thereafter, on 20 September, certain amendments were introduced, at the Committee Stage in Parliament, to the said Bill entitled “Provincial Councils Elections (Amendment)”, which said Committee Stage amendments, sought to achieve indirectly what could not be achieved by the Government directly by the said 20th Amendment to the Constitution Bill, he states.

The said purported Committee Stage amendments, which were subsequently passed as pleaded below, would, if interpreted as sought to be interpreted by the Elections Commission or any one or more of them as pleaded below, in complete disregard of the overriding provisions of the Constitution and the Supreme Court’s Determination, have the effect of suspending indefinitely the provisions of the Provincial Councils Act No.2 of 1982 and the holding of Provincial Councils Elections, in blatant violation of the Sovereignty and Franchise of the People preserved under Articles 3 and 4 of the Constitution, as well as the Fundamental Rights guaranteed to the Petitioner and the people under inter alia Articles 10, 12(1) and 14(1)(a) of the Constitution.

He states the said Bill including the said purported Committee Stage amendments was passed in Parliament on 20 September, by a special majority [two thirds of all Members including those not voting] and certified by the Speaker as having been “duly passed by Parliament”, despite it contravening the provisions of Articles 82 and 83 of the Constitution.

He states that the Speaker and the Attorney General have eroded and negated the effect of the Constitutional right conferred on the People by Articles 120 and 121 to invoke the jurisdiction of Supreme Court to challenge any Bill which is inconsistent with the provisions of the Constitution.

He states the said decision of the Elections Commission that by reason of the provisions of the said Amending Act No.17 of 2017, Provincial Council elections cannot be held and steps cannot be taken as mandated by Section 10 of the Provincial Councils Elections Act No.2 of 1982 to conduct elections for the Provincial Councils, i.e. including inter alia elections for the Sabaragamuwa, North Central and Eastern Provincial Councils which already stand dissolved by the operation of Article 154E of the Constitution, is violative of Article 84(3) of the Constitution and is illegal, completely arbitrary, capricious, unreasonable and motivated by extraneous considerations and political expediencies of the Government, and constitutes an infringement of the Fundamental Rights of the Petitioner and of the people guaranteed under Articles 10, 12(1) and 14(1)(a) of the Constitution, as well as being inconsistent with Articles 3 and 4 of the Constitution. Such conduct on the part of the 1st to 3rd Respondents would erode into the very foundation of the Rule of Law.