There is major controversy over the possible entry of Podujana Party strongman Basil Rajapaksa into Parliament on the National List. But the fact is that both the Supreme Court has said a very firm ‘No’ to similar attempts in the past by others.
What will the Court do in the face of those positions taken by the Bench is the million rupee question on everyone’s lips in Sri Lanka? Will it follow the honourable positions taken by honourable judges who earlier sat on the Court or will it follow a different tune of the ‘pied piper’?
Where the law is concerned, the answer is clear, several senior attorneys and legal analysts pointed out when asked by the Colombo Telegraph. Nominations upon vacancies arising in a party’s National Lists must be exercised within limits and the power of a secretary of a political party to nominate to such vacancies must be limited to individuals whose names have appeared in the original nomination paper and who have secured some preferences at the elections ‘on the basis of which the voters cast their votes and expressed their preferences.’
The Supreme Court said this, in the opinion of the late Justice Mark Fernando with Wigneswaran and Gunasekera JJ agreeing, when a Peoples Alliance (coalition of the Sri Lanka Freedom Party) parliamentarian Samaraweera Weerawanni tried to enter the Uva Provincial Council on that party’s National List in 1999. Weerawanni was a Member of Parliament at the time that the provincial elections were held. His wife Nalini Weerawanni contested, won and then became Chief Minister. She then tried to step down to allow him to become Chief Minister.
But the Supreme Court said ‘No.’ Fernando J explained this, saying that the ‘supremacy of the party” (or its secretary) cannot prevail over members and candidates. This is ‘not a domestic question’, the Court said, ‘pertaining to the party, party discipline, and/or party officials, members and candidates.’ Rather, ‘what is involved is the right of the electorate to be represented by persons who have faced the voters and obtained their support, and that in my view is the general scheme of the Act. That is wholly consistent with international law,’ in this case, Article 25 of the International Covenant on Civil and Political Rights.
The Election Commissioner’s declaration that Weerawanni could sit in the Uva Provincial Council was quashed. Jayantha de Almeida Guneratne, Kishali Pinto-Jayawardena and Viran Corea appeared for the petitioners, Centre for Policy Alternatives. Saleem Marsoof, ASG appeared for the Attorney General. Jayampathy Wickremeratne appeared for the secretary of the Peoples Alliance.
See link to full judgment here