The fiasco of the Kalawana by-election of 1981

By Saliya Pieris

In a recent talk, I referred to the incident in 1980 of the Kalawana election petition, and the attempt by the then Government to bypass the ruling of the Court of Appeal, to allow the ousted Member of Parliament for Kalawana and to avoid the by-election to Kalawana.

This was an early attempt at meddling with the franchise and the jurisdiction of the courts which was fortunately thwarted by an independent Judiciary and an equally independent Commissioner of Elections.

At the 1977 General Elections, the UNP won the Kalawana seat by a majority of 1,662 votes over the Communist Party’s Sarath Muttwttuwegama. Soon an election petition was filed challenging the election of the MP Abeyratne Pilapitiya to Parliament.

During the pendency of the election petition, Pilapitiya absented himself without leave for three months from Parliament and due to the operation of the Constitution his seat was declared vacant. As a consequence of the provisions of the 1978 Constitution, the UNP was able to re-appoint Pilapitiya to that seat.

The hearing of the election petition continued, and the Court of Appeal upheld the election petition and declared that Pilapitiya was unseated as the Member of Parliament resulting in a by-election being declared for Kalawana. At this point the then Government tried to avoid a by-election. This was done by arguing that Pilapitiya was now sitting as an MP not by virtue of his win at the 1977 General Election (which had now been overturned) but as a result of him being re-appointed after having absented himself from Parliament for three months.

This argument was obviously flawed, because the UNP got the right to re-appoint Pilapitiya only because he had won the seat at the General Election. The then Speaker upheld Pilapitiya’s argument and allowed him to take his seat in Parliament- even though the Court of Appeal had unseated him.

Despite the Speaker’s ruling the then Commissioner of Elections M.A. Piyasekera decided that he will go ahead with holding the by-election for Kalawana. The UNP decided not to contest the by-election. Handing over nominations for the seat was Sarath Muttettuwegama of the Communist Party and the UNP backed an Independent Candidate Lionel Gunasekera. The by-election was fixed for 12 January 1981.

The then Government had by now painted itself to a corner and did not want to back down. President J.R.Jayewardene put out the idea that both persons could be accommodated by changing the Constitution and the Government proposed the 3rd Amendment to the Constitution – as an urgent bill in the national interest. This would have allowed the seat of Kalawana to have two members of Parliament – one the unseated Pilapitiya and the second whoever was elected at the by-election.

The Bill was referred by the President to the Supreme Court. The Bill was challenged by the Civil Rights Movement which was represented by S. Nadesan QC one of the most fearless members of the legal profession at that time.

A five-judge Bench comprising of Samarakoon CJ and Justices Samarawickrema, Weeraratne, Sharvananda and Wanasundera heard the Petition on 26  December 1980. The State was represented by the Attorney General Shiva Pasupathi himself.

The Supreme Court held that the Bill which sought to seat two members for Kalawana – one nominated and the other re-elected - nd seeks to seat two members for one seat – violated the franchise and the sovereignty of the Bill and hence required passage not only by a two-thirds majority which the Government had but also approval by the people at a referendum. The brief determination of the court can be read at parliament.lk/.../sc-decisions-on.

The Supreme Court’s determination effectively put an end to the issue. On 12 January 1981, the Kalawana By-Election was held and Sarath Muttettuwegama was elected as the new MP. Abeyratne Pilapitiya resigned from his seat and Muttettuwegama took his rightful seat in Parliament.

The decision by the Elections Commissioner to go ahead with the Kalawana By-Election, despite the Government’s moves and the unanimous determination of the Supreme Court bench headed by Neville Samarakoon CJ, scuttled the undemocratic attempt to seat the unseated MP for Kalawana.

(The writer is a President’s Counsel and former President of the Bar Association of Sri Lanka.)