30 May, 2020

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Fundamental Rights Petition Filed Against Holding Elections

After astonishingly decided to hold the Parliamentary Poll on 20-06-2020 by the Election Commission of Sri Lanka, lots of concerned parties mooted that could this decision be implemented as there will be surfeit of court cases which will be filed in the Supreme Court in coming days. Accordingly, one Petition (SC/FR/89/2020) has been instituted by an Attorney-at-Law and former member of the Colombo Municipal Council – Charitha Maithri Gunaratne of No. 118, Barnes Place, Colombo 07.

Election Commissioners

To this Petition, Election Commission, Mahinda Deshapriya – Chairman of the Election Commission, N. J. Abeysekera, S. Rathnajeevan H. Hoole, P. B. Jayasundare – Secretary to the President, Dr. Anil Jasinghe – Director General of Health Services and Attorney General have named as the Respondents.

The Petitioner has, inter alia, pleaded that, holding the Parliamentary Poll on 20-06-2020 have violated and/or been violating his Fundamental Rights protected under Article 12(1) and 14 of the Constitution.  Further, he has also averred that the election prescribed to have on 20th June, 2020, has violated the Directive Principles of State Policy and Fundamental Duties protected by Article 27 of the Constitution.

The Petitioner alleged that the purported order published by the members of the Election Commission in the Extraordinary Gazette Notification No. 2172/03 dated 20-04-2020 to conduct the Parliamentary Election on 20-06-2020 is, illegal and unconstitutional, unreasonable, ultra vires and has violated the Fundamental Rights protected by the Constitution to the Petitioner, due to number of reasons, viz, inasmuch as the Article 70(5)(a), 70(5)(b) and 70(5)(c) of the Constitution has provided mandatory provision to convene the new Parliament not later than 3-months from the date of proclamation of the dissolution of Parliament, the election date could not surpass 02-06-2020; inasmuch as the section 10(1)(b)(i) of the Parliamentary Election Act No. 01 of the 1981 (as amended) has provided mandatory provisions for the fixing of date for the Poll within a period not less than 5-weeks and not more than 7-weeks from the closing date of the Nomination,  the election date could not have exceeded beyond 13-05-2020; even if the section 24(3) of the Parliamentary Election Act No. 01 of the 1981 (as amended) is abided by, the members of the Election Commission could have proclaimed the new Election date [whilst complying to the rule of not less than 14-days, after the original date (25-04-2020) of Poll] which would fall from 11th of May to 13th of May; but, contrary, the members of the Election Commission have willingly and knowingly violated the very Act which they should resort to.

In this Petition, the Petitioner has pleaded that the Election Commission was compelled publish the Order in the Extraordinary Gazette Notification No. 2172/03 dated 20-04-2020 due to actions and omissions of the 5th Respondent, the Secretary to the President who also represents His Excellency the President. It is the contention of the Petitioner that, as per Article 33(1)(d) of the Constitution, the President on the advice of the Election Commission, has to ensure the proper conditions for the conduct of a free and fair election and referendum. Since Sri Lanka is still being battered by Covid-19 pandemic, and also the President has failed to ensure the proper conditions for the conduct of an election, the President and the 5th Respondent – the Secretary to the President have violated the above Constitutional provisions. This was evident by the fact that, despite the concerns made by the members of the Election Commission in their 2-letters dated 31-04-2020 and 01-04-2020 and the individual letter dated 16-04-2020 sent by Prof. S. Rathnajeevan H, Hoole, the Secretary to the President failed to advice and/or direct the President to take actions under Article 33(1)(d) of the Constitution. Hence, the President himself has violated the constitutional onus which was bestowed upon him.

Nearly 700-Million Rupees are estimated to spend for the Election and that amount will double should Sri Lanka take extra precautions, such as the practices followed by South Korea, to take steps to prevent the infection rate during the election time. It was further mentioned in this Petition that, Government has yet not introduced any stimulus package to the assaulted economy for which may need so much of funds in near future with the unprecedented unemployment which could also hamper the economy soon; whereas, should the election be conducted, the enormous amount of resources which could have used for the regaining of the economy and the welfare of the society will have to be utilized for an Illegal Election.

More importantly, the Petitioner has pleaded that should the Election Commission to continue the election according to the Extraordinary Gazette Notification No.  2172/03 dated 20-04-2020 the life of the people will be at a stake and the Right to Life which is the golden thread of each concept of human right shall have no value.

On the said grounds, the Petitioner has prayed for an order from the highest court of the country to declare that the total conduct of the members of the Election Commission have violated the Fundamental Rights of the Petitioner enjoyed under Article 12(1), 14 and Directive Principles of State Policy and Fundamental Duties protected by Article 27 of the Constitution, make an order quashing the Extraordinary Gazette Notification No.  2172/03 dated 20-04-2020 as it violates his Fundamental Rights, make an order quashing the Parliamentary Election which is set to conduct on 20-06-2020, grant an interim order restraining the Election pending the final determination of this Application, and a directive be given to the members of the Election Commission, to advice the 5th Respondent – the Secretary to the President and the President himself that as the latter 2-persons have failed to ensure the proper conditions for the conduct of a free and fair election, according to Article 33(1)(d) of the Constitution, the member of the Election Commission could not be able to hold the Election.

Attorney-at-Law Ashan Nanayakkara who appears for the Petitioner, said that this Fundamental Rights Application (Petition is annexed here) has submitted to the Supreme Court via e-filing as the office of the Registrar of Their Lordships’ Court has not commenced its functions for the 2nd Term after the vacation, followed by finding of plethora of covid-19 infected patients around Keselwatte and Bandaranayake Road which areas are located at the close vicinity of Hulftsdorp. 

To read the petition click here

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Latest comments

  • 6
    15

    let the war begin………

    • 17
      0

      Let the Supreme Court decides……..

  • 8
    0

    PART ONE
    .
    Our country
    has progressively got into a mess because most of us citizens have allowed the manipulation of elections using specious arguments of all sorts. I heard Udaya Gamampila of the SLPP grouping say that the UNP forces wanted to cancel the nominations made somewhere in March (let that remain vague – after all, I’m not “an interested party” in that like most citizens I’m sick of these politicians). Why?

    If those nominations stand, the “opposition” will be faced with a dilemma. Those Sinhalese who don’t want the SLPP will be forced to vote for either the Sajith Group, or the Ranil Group, or the JVP – if they really want some representation. “Eccentrics” can waste their vote. Even if the elections are held in 2022. Tackling the virus was delayed long enough to ensure the “divided nominations”. Such manipulation (by any side) should lead to backfiring. But not in Sri Lanka.

    Sinhalese? Yes, not speaking a word of Tamil, it is unlikely that I will vote for a “Tamil Party” or a “Muslim Party”. This is the sad reality.
    .

  • 2
    0

    PART TWO
    .
    My usual practice
    is to keep asking if there is a decent Tamil or Muslim candidate in the “National Party” of my choice, for me to give at least one of my three preferences to the guy. What is the feminine of “guy”? I’m open enough to vote for a female of the species.
    .
    The four significant “Sinhalese Groupings” almost always include a Tamil/s and a Muslim/s, and – voila, they become “National Parties”. Almost? Well, there may be a District which just doesn’t have sufficient “minority voters” to justify the inclusion of one of them in the list. Next step. Look at the names of the other parties and label them “communal”.
    .
    I know that such talk signifies thinking that is not quite objective – but we just haven’t got the ability to select better. And remember that among many Sinhalese voters “caste” considerations are still there. I think that I can honestly say it doesn’t apply to me.
    .

  • 2
    1

    PART THREE
    .
    How
    can we have peace and prosperity in a country where you have this? “N. Perera / April 30, 2020. Never ever trust TAMILS. Indian Proverb “If you see TAMIL and COBRA kill TAMIL first” How can Election Commission Independent?”
    .
    See it here:
    .
    https://www.colombotelegraph.com/index.php/are-we-an-independent-commission/
    .
    Solution? Censor? No, N. Perera will migrate elsewhere. At least here he faces the opprobrium of the majority of readers.
    .
    In a Law Court, the real reason will rarely get upheld. So, we have to let the legal eagle file a case as here. On the other hand, I think that this ought to have been proof read more carefully. I have “clicked” and looked at the 15-page petition that goes with this article. Some of the mistakes in English (as I know it) may not matter. After all, “we are Sri Lankans”. However, please note that the date 31 April 2020 doesn’t exist in the Gregorian Calendar (I finally clarified the difference between Julian and Gregorian just now!)

  • 1
    2

    The battle lines have been drawn…… let see what happens

  • 2
    0

    An excellent bold move by gutsy honourable folks who do not seem to be bullied by the circus clownish acts performed by the mangy flea-ridden pissu Balu rajapukas who mentally and physically think that this now sad sorry Kota Uda nation belongs to them now.
    =
    If and when the elections have finally been given a date for polling, the voters in this once upon a time dreamworld should not swallow the gunddo’s told with glee by the rajapuk’s and their fellow horuma boru cheap gutter snipes whose rightful place is in the said gutters.
    =
    On this much sought much after day, the voters should become bold clever use their sacred holy privilege uses their normally sitting on their heads brains and vote for the progressive democratic UNP to fly into power and sit in the parliament to begin the task of ridding this once much-loved nation a one-time rich rice exporter to get into the black economy-wise once again…
    =
    If the voters have the brave indulgence of repeating the similar 1977 polls the rajapuka’s can be made to become an unscrupulous family of horu boru kiyanne rabid parayah’s.
    Cheers, hoping & wishing for the best for this sad now awaiting to be saved sorry nation. R. J.

  • 2
    0

    A missed out addition.
    =
    If only strictly impartial, not blindly loyal to the rajapuka judges are appointed to hear this justified highest court the right result should be given then one and all in this island can for once in their life go about attending to their daily needs.
    Cheers, R. J.

  • 0
    0

    I’m personally all right, but I’m surveying with ever greater bemusement how the country is drifting rudderless.
    .
    I don’t want to add too much to the verbiage since I see contradictions everywhere. In Part 3 of the comment I posted earlier, I spoke of the horrible comment that I had seen from a certain N. Perera. Please compare what you see there with what a person with the same name and the same gravatar has said the very next day in response to this tribute to Professor Hoole:
    .
    https://www.colombotelegraph.com/index.php/ratnajeevan-hoole-a-legend-of-our-times/
    .
    How could the same person have said such different things? This may be a non-entity, but I’m worried about the gravatar being the same, and the content so different.
    .
    I will draw attention to this elsewhere as well; my faith in CT is absolute, but I think that there are gremlins affecting us. Annoying as the captchas may be, the extra security is necessary. I’ve avoided using the word “virus” since that has other connotations.

    • 0
      0

      Dear Sinhala_Man, Mine may be a digression, but, out tense times call for a little diversion too.
      You begin, ‘I’m personally all right …’. I wonder if that ought to have read, ‘I’m personally alright’.
      In which sense did you want that to be taken?

      • 1
        0

        No dear, You were formal and right! I am alright with that!!

        • 0
          0

          Dear Nathan,
          .
          The digression was welcome. Most of the time I use English without thinking about what I’m saying. But then, I’ve been a teacher, and when challenged, I’m not sure what to say.
          .
          Your postscript marks you out as a really nice guy. You had actually checked it out after submitting the “foolish comment”. Many a guy would have left it at that, but you had decided to acknowledge that in this case at least my pedantry was all right!
          .
          I know only two languages. Even that’s been enough to make me realise that “Language” can be confusing. I don’t often correct, but a few days ago, I decided that “leelagemalli” is such a nice guy that I thought I’d better try to correct his “learnt man” to “learned man” – with an extra syllable. I thought that I should add another instance of that sort, but couldn’t think of one – and still can’t! “Rugged terrain”? – no, that won’t do, since there isn’t a single syllable alternative meaning.
          .
          Well, “punished”. If you see Zefferelli’s Romeo and Juliet, you will find that Prince Escalus has the last word, which is left echoing:
          .
          ” . . . all are punish-ed” – or so I remember.
          .
          It is very important not to promote inhibition – the notorious “kaduwa” that undergrads resent.

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