SC to consider fuller bench for petitions against PC Elections’ postponement

By S.S. Selvanayagam

The Supreme Court yesterday ruled that it would consider fixing a fuller bench in respect of the five petitions complaining of the purported postponement of the Provincial Council elections on 27 November.

The bench comprised Justices B.P.Aluvihara, Priyantha Jayawardane and Anil Gooneratne.

Five petitioners including Prof. G. L.Peiris and MP Dulles Alahapperuma, who challenged the postponement of Provincial Council elections, have urged the Supreme Court to hear their petitions before a fuller bench.

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

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

Prof. G.L. Pieris in his petition challenged the decision of the Elections Commission to indefinitely postpone the elections

He is asking Court to make an order to take steps to conduct the election for the Sabaragamuwa, 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 stated that indefinitely postponing taking 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 states the presently constituted Sabaragamuwa Provincial Council, duly elected by the people in 2012, stood dissolved on 27 September 2017 and the North Central and Eastern provincial councils too stood dissolved on 1 October 2017.

The petitioner states that 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 indefinite postponement 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 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 states.

He says 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 provincial councils.

He stated thereafter, another bill entitled the ‘20th 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.

The petitioner states that the 20th 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 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 was motivated by political expediencies of the Government and was irrational, arbitrary and capricious and was 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 was 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 2017 and read in Parliament on 19 September 2017.

Shortly thereafter, on 20 September 2017, certain amendments were introduced to the said Bill entitled ‘Provincial Councils Elections (Amendment)’, at the Committee Stage in Parliament which 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 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 states 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.