By Ruwan Laknath Jayakody and Faizer Shaheid –

SC must clarify exemption of Article 66(g) under Article 99(13)(b) – Narrow mindedness of the EC questioned

The game of musical chairs does entail its players having to face the music at some point. When the music is killed off, and silence careens, one player will inevitably find oneself in the unenviable position of standing pretty, merely occupying vacant space; the void beckons. In politics, this is akin to a no man’s land where if not fear, at least uncertainty prevails to a certain degree as to one’s fate, in this instance as one of the elected people’s representatives.

The legal regime as applicable to nominees, candidates and members

Section 14 of the Parliamentary Elections Act, No. 01 of 1981, states that anyone qualified as per Article 90 of the Constitution may be nominated as a candidate for an election. Article 90 reads thus, “Every person who is qualified to be an elector shall be qualified to be elected as a Member of Parliament unless he is disqualified under the provisions of Article 91.”

Article 91 of the Constitution specifies disqualifications for being elected as a Parliamentarian.

As per the substitution of Section 20 of the 19th Amendment to the Constitution, Article 91(1)(d)(xiii) of the Constitution holds that a Sri Lankan citizen possessing dual citizenship (citizenship in another country aside to and apart from Sri Lanka) cannot be elected as a MP or allowed to sit and vote in Parliament. Dual citizenship can be obtained under the provisions of the Citizenship (Amendment) Act, No. 45 of 1987.

Any person not qualified to be elected as a MP, consenting to being nominated as a candidate, is, as per Section 18(a) of the Parliamentary Elections Act, committing an offence. Section 18(a) reads, “by reason of his conviction for a corrupt or illegal practice or by reason of the report of an Election Judge under the Ceylon (Parliamentary Elections) Order in Council, 1946, or under this Act (emphasis by the authors), or by reason of the report of the Supreme Court under the Presidential Elections Act, 1981 ;”. If convicted by a magistrate, the guilty are liable to a maximum fine of Rs 1,000 or to a maximum prison term of three months or both the fine and the term of imprisonment.

According to Section 92(2)(d) of the Parliamentary Elections Act, the election of a candidate of any electoral district could be declared void on an election petition if it could be proved to the satisfaction of the Election Judge that the candidate at the time of his/her election was disqualified for election as such. Furthermore, the said Subsection states that the matter is to be determined by an Election Judge. There is however no Election Judge in the country. Thus, the matter is to be tried before the Court of Appeal (jurisdiction stipulated in Section 93 of the Parliamentary Elections Act and Articles 140 and 144 of the Constitution).

Article 66(g) of the Constitution holds that a Parliamentary seat becomes vacant if the election of a MP is declared void by the law in place.

Also, Section 115 of the Parliamentary Elections Act holds that aside to the death of a nominee (person whose name is found on the nomination paper of a recognized political party or independent group) or a nominee withdrawing any particular nomination (of a person nominated for election), the disqualification of a candidate as per any written law for election or for sitting and voting as a MP, whether the disqualification takes place prior to being elected or after, does not have any impact including of invalidation on the said recognized political party or independent group’s nomination paper for any electoral district. This further means that no other nominee’s candidature or election shall be invalidated for the aforementioned reasons.

In the event a MP ceases to be a member of a recognized political party or independent group for as per Article 99(13)(a) of the Constitution, reasons “otherwise”, the Parliamentarian’s seat becomes vacant upon the expiry of one month from the date of ceasing to be a Member. If the said Member however petitions the Supreme Court within the said month, and the Court (a three Judge panel) in turn makes a determination on the said application by the Member within two months of the filing of the petition, and determines that the expulsion was invalid, s/he remains a MP. If the Court rules that the expulsion was valid, such will be in effect from the date the said determination was made by the Court. If as per Article 66(g) of the Constitution, the Parliamentary seat becomes vacant in the event the election of a MP is declared void by the law in place at the time of the election or being elected, then the candidate from the relevant recognized political party or independent group who has secured the next highest number of preferences/preferential votes cannot (emphasis by the authors) fill the vacancy. The law remains silent on how the vacancy would be filled in such an instance when there is an exemption provided for Article 66(g) of the Constitution under Article 99(13)(b) of the Constitution. It is therefore up to the Supreme Court to interpret such.

According to Article 99A of the Constitution, all recognized political parties or independent groups contesting a General/Parliamentary Election must during the nomination period submit to the Chairman of the Election Commission, a list of persons qualified to be elected as MPs, nominating them to fill the Parliamentary seats, as per the apportionment to which the party or group is entitled to. One of the core problems to be contended with here is the participation of the Election Commission in granting politician Geetha Kumarasinghe nomination to contest the election. As a candidate who had contested the election, it is only fair to assume that Kumarasinghe had entered through a people’s mandate. However, according to Article 99A of the Constitution, all that the Commissioner of Elections will seek to determine is whether the number of members belonging to and representing any community (all communities) who are elected under Article 98 of the Constitution, is commensurate with the national population ratio. As per Section 19 of the Parliamentary Elections Act, the returning officer in rejecting nomination papers may only do so on procedural grounds.

According to Article 100 of the Constitution, a person elected as a MP sans qualification to be elected at the time of election, who has sat and voted in Parliament after his/her seat has become vacant or s/he has been disqualified or s/he knows or has reasonable grounds for knowing that his/her seat has become vacant or that s/he has been disqualified, s/he is liable to be fined and penalized Rs 500 per every day s/he sits or votes. This debt can be recovered by way of action instituted by the Attorney General in the District Court of Colombo.

In the Court of Appeal Writ 362/2015, N.W.E. Buwenaka and Others Vs. Geetha Samanmali Kumarasinghe and Others, the Petitioners are five electors/voters (Buwenaka, J.K. Amarawardhana, A.C. Gunasekara, J.K. Wijesingha and H. L. Prasanna Deepthilal), and the Respondents are Kumarasinghe (the first respondent), the Controller General of Immigration and Emigration (the second respondent), the General Secretary of the United People’s Freedom Alliance (the third respondent) and the Secretary General of Parliament (the fourth respondent).

The petitioners have challenged the first respondent’s claim to hold office as a MP on the basis of Article 91(1)(d)(xiii) of the Constitution. The petitioners further claimed that the first respondent had not divulged the dual citizenship status at the time of nominations (including hers) being submitted by the third respondent for the 2015 August Election. The petitioners have thus sought a writ of quo warranto.

A writ of quo warranto is a prerogative writ which is an official order where the person to whom the order is directed to must show proof of what authority or warrant they possess for exercising a certain right or in this case power of an office or franchise they hold or stake a claim for.

Section 2 of the Parliament (Powers and Privileges) Act, No. 21 of 1953, interprets a member as to be a MP. The case in this instance is one where the very validity of the position of the first respondent’s Parliamentary status has come into question and therefore the Parliament (Powers and Privileges) Act cannot be considered as applicable in this regard.

Elsewhere, Senior Lecturer at the Department of Commercial Law of the Faculty of Law of the University of Colombo, former Human Rights Commissioner Dr. Prathiba Mahanamahewa, author of ‘Geetha Kumarasinghe: If unseated, need an interpretation’, questioned the role of the Election Commission on the matter and criticized the Commission for giving a decision and direction which constituted a narrow interpretation given to the matter by siding with the third and fourth respondents, especially with the position of the third respondent. The Commission is an independent one established under the 19th Amendment to the Constitution.

Counsel for Kumarasinghe, brought out issues pertaining to that her unseating should have been done through an election petition, filed in a timely manner by those eligible to file such and seek judicial review. According to Article 95 of the Constitution, a person claiming the right to be returned or elected at the said Election or a person alleging to have been a candidate at the said Election could present an election petition to the Court of Appeal. The petitioners were neither. Secondly, legal representation for Kumarasinghe whilst raising a plethora of other issues, also raised the concern that, now that she had taken oaths and functioned as a Parliamentarian, it was and is improper for any Court to intervene in Parliamentary affairs (“to quash the election” and “to impeach or question {the} proceedings of {the} Parliament”).

The Court of Appeal in a judgment written by Justice Priya Padman Surasena with President of the Court, Justice Vijith K. Malalgoda [President’s Counsel] concurring, disqualified the first respondent, noting that she was not entitled to hold the office of a MP. The Court issued a writ of quo warranto where a person is required to prove under what premise s/he holds a certain office.

In the immediate aftermath, an attempt was made to replace Kumarasinghe with Piyasena Gamage in Parliament. Despite the swiftness of the attempt, Kumarasinghe was able to obtain a Supreme Court stay order on the Court of Appeal ruling until matters were further resolved. If Kumarasinghe is unseated from Parliament, it would be the very first occasion in Sri Lanka where a MP has been unseated for holding a dual citizenship.