SC refused leave to proceed with FR Petitions against EC decision to postpone PC elections

By S.S.Selvanayagam

The Supreme Court this week by majority decision refused to grant leave to proceed with the fundamental rights petitions complaining of the purported postponement of the Provincial Council elections.

The Bench comprised Chief Justice PriyasathDep, Justices Sisira J De Abrew and Nalin Perera. The majority decision refused to grant leave while the Chief Justice dissented.

Gamini Marapana PC with Navin Marapana and KausalyaMolligoda appeared for Prof. G.L.Peiris and R.M.K. Jayaratne. Sanjeeva Jayawardena PC with CharitaRupasinghe appeared for Petitioners Ven. Omar Kassapa Thero and Ven. GalagamaDhammasiri Thero. Ali Sabry PC with Ruantha Cooray appeared for the Petitioner Dulles Alahaperuma.

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

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

He sought 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, it members and the Speaker of the Parliament Karu Jayasuriya and the Attorney General as Respondents.

He stated 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, constituting 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 stated the presently constituted Sabaragamuwa Provincial Council, duly elected by the People in the year 2012, stood dissolved on 27 September 2017 and the North Central as well as Eastern Provincial Councils too stood dissolved on 1 October 2017.

He stated certain purported amendments surreptitiously introduced at the Committee Stage in Parliament, to the Bill entitled ‘Provincial Councils Elections (Amendment)’ on or about 20 September 2017 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.

He stated that the said Bill entitled “a Bill to amend the Provincial Councils Elections Act”, was published in the Supplement issued on 10 July 2017 to Part II of the Gazette dated 7 July 2017, and placed on the Order Paper of Parliament on or about 26 July 2017.

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 stated.

He stated 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 stated thereafter, another Bill entitled the “Twentieth Amendment to the Constitution” was published in the Supplement issued on 3 August 2017 to Part II of the Government Gazette dated 28 July 2017, and placed in the Order Paper of Parliament on 23 August 2017.

He stated 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 inalienablesovereignty 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 stated 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 stated the said Determination was communicated by the Supreme Court on or about 15 September 2017 and read in Parliament on 19 September 2017.

Shortly thereafter, on 20 September 2017, 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 stated.

The said purported Committee Stage amendments, which were subsequently passed as pleaded below, would – ifinterpreted 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 would 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 alleged.

He stated the said Bill including the said purported Committee Stage amendments was passed in Parliament on 20 September 2017, 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.

JO questions Government on Provincial Council elections

The Joint Opposition this week blamed the Government for failing to announce its decision on the elections which needed to be held before 31 March for three Provincial Councils coming under the purview of Governors.

Joint Opposition Parliamentary Group Leader MP Dinesh Gunawardena pointed out that according to the Provincial Councils (amendment) act, Parliament must decide on holding elections for PC’s under Governor before 31 March.

“The Parliament can’t take any decision regarding these elections as the Government still has not announced its position regarding the matter. According to the Act, the Delimitation Committee should submit a report to the minister and the minister should submit it to the parliament within two weeks of receiving,” Gunawardena said, noting that Parliament had only three weeks to arrive at conclusive decision.

Gunawardena then demanded to know if the Government would go along with the recently passed Act, or if the Government would be bringing in further Amendments to the Act.

In response, Speaker Jayasuriya requested MP Gunawardana to refer his queries to Provincial Councils and Local Governments Minister Faiszer Mustapha.

“I understand the importance of the question raised by MP Gunawardena and therefore request that he direct his question to the subject Minister. I will see if he can provide an answer tomorrow,” the Speaker stated.  

(SG)