Colombo Telegraph

Candidate Nagamuwa Files FR Against Mahinda Rajapaksa For Abusing Powers To Call Out Army At Election Time

A fundamental rights application has been filed by Dudeesha Duminda Nagamuwa, the candidate nominated by the Frontline Socialist Party (FSP) for the January 8, 2015 presidential election, asking the Supreme Court to give relief for the violation of the fundamental rights of citizens of Sri Lanka by former President Mahinda Rajapaksa (Percy Mahendra Rajapaksa) by abusing his powers and unnecessarily deploying the army in all 25 districts at election time. The case SC FR 14/2015 has been filed through his registered attorney-at-law, Lalith Gunarathne and should be taken up in court within the next couple of weeks, Colombo Telegraph is able to reveal today.

The petition complains to the court that an order dated January 2, 2015 issued by the 1st Respondent (Mahinda Rajapaksa) under Section 12(1) of the Public Security Ordinance was an abuse of the powers under that law, which violated the fundamental rights of the petitioner and all other citizens of the country.

The petitioner says that with the election held on January 8, 2015, he is reliably informed that Sri Lanka Army personnel were deployed between January 3-8, 2015 and during the early hours of January 9, 2015. He draws the attention of court to the fact that numerous media reports and reports from independent election monitors confirm the deployment of Sri Lanka Army personnel on the aforesaid dates. He has forwarded to the court for its information, copies of media reports including an interview with the Former Commander of the Sri Lanka Army, General Sarath Fonseka and copies of periodic reports by the Centre for Monitoring Election Violence (CMEV), alleging the deployment of Sri Lanka Army personnel.

Nagamuwa informs the court that he is reliably informed that the Elections Commissioner, Mahinda Deshapriya (who is made a respondent in the case) appointed under Article 103(1) of the Constitution, is vested with the authority under Article 104D of the Constitution to make recommendations to the President regarding the deployment of the armed forces of the Republic for the prevention or control of any actions or incidents which may be prejudicial to the holding or conducting of a free and fair election. The petition goes on to state that he is reliably informed that the Elections Commissioner has made no such recommendation to Mahinda Rajapaksa. He further states that Rajapaksa has arbitrarily made the decision, and that there was no genuine basis for doing so. The Commanders of all three forces and Inspector General of Police are all made respondents to the case.

Section 12(1) of the Public Security Ordinance provides that:

Where circumstances endangering the public security in any area have arisen or are imminent and the President is of the opinion that the police are inadequate to deal with such situation in that area, he may, by Order published in the Gazette, call out all or any of the members of all or any of the armed forces for the maintenance of public order in that area.

The petitioner states to court that the 1st Respondent (President at the time) was authorised to issue an Order under Section 12(1) of the Public Security Ordinance (PSO) only upon meeting the following criteria stipulated in the PSO:

(a) Circumstances endangering the public security have arisen in an area or are imminent; and

(b)The President is of the opinion that the police are inadequate to deal with such a situation in that area.

Nagamuwa draws the court’s attention to the fact that the Order dated 2nd January 2015 purports to deploy inter alia the Sri Lanka Army in all twenty-five (25) districts of Sri Lanka, although it is most evident the criteria listed above were not met on January 2, 2015 or thereafter.

He reiterates that the Elections Commissioner at no point whatsoever recommended to Rajapaksa (1st Respondent) the deployment of the armed forces for the maintenance of public order and adds that it is most evident that:

First, no circumstances endangering the public security arose in any particular area, and certainly not simultaneously in all twenty-five (25) districts of Sri Lanka.

Second, even in the event that such circumstances had arisen in all twenty-five (25) districts of Sri Lanka, the 1st Respondent could not have reasonably held the opinion that the police were inadequate to deal with any such circumstance.

The petitioner also draws the court’s attention to the fact that prior to the Order of January 2, 2015, Rajapaksa was in the habit of issuing similar Orders under Section 12(1) of the PSO on a monthly basis. In such circumstances, a concerned Bar Association of Sri Lanka issued a statement dated July 7, 2014 describing the said Orders as ‘illegal, unjustified and ultra vires’.

The petitioner complains to the Supreme Court that the exercise of powers vested under Section 12(1) of the PSO in circumstances other than those specifically referred to in the said section is ultra vires and amounts to the arbitrary exercise and/or abuse and/or misuse of the powers vested in the President under the PSO. He urges the court to consider that the 1st Respondent Rajapaksa, by exercising the aforesaid powers under Section 12(1) of the PSO in circumstances that clearly failed to meet the criteria stipulated in the said section, acted in a manner ultra vires the PSO and arbitrarily exercised and/or abused and/or misused the powers vested in him under the PSO.

The petitioner urges the court to consider that powers under Section 12(1) of the PSO are intended to be exercised strictly, genuinely and properly on the basis of the statutorily stipulated criteria, and that its arbitrary exercise by the 1st Respondent impugned by the case, constitutes misuse and/or abuse of powers.

Nagamuwa urges the court to consider that such misuse and/or abuse of the aforesaid powers under Section 12(1) of the PSO particularly at the time of an election, the outcome of which the 1st Respondent (as a candidate) was directly and very personally concerned in, creates very serious apprehensions of abuse of military power to affect and/or suppress and/or alter the outcome of the election.

The petition also states that the creation of such apprehension by such misuse and/or abuse of powers by the 1st Respondent, is inimical to the conduct (and perception by citizens) of a truly free and fair election, the assurance of which is essential to secure, protect and advance meaningful enjoyment of the rights of franchise and all appurtenant rights, as provided and contemplated by Article 4(e) read with Article 4(d) and Article 12(1) of the Constitution.

Nagamuwa asks the court to declare that in the given circumstances, the culpable action and/or inaction of the 1st Respondent Rajapaksa, in arbitrarily exercising and/or abusing and/or misusing powers vested in him under Section 12(1) of the Public Security Ordinance has resulted in the denial of the rights of all citizens of Sri Lanka to equality before the law, and has violated and jeopardised the fundamental rights guaranteed to all citizens of Sri Lanka under Article 12(1) of the Constitution. He also urges that Rajapaksa be required to pay compensation in a suitable sum determined by the court.

Read the petition here

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