28 September, 2020

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Is The Election Commission In Breach Of Sec. 24(3) Of The Elections Act? 

By Tatiyajith Karunaratne –

Tatiyajith Karunaratne

Recently there have been many arguments on printed and electronic media on the operation of Sec. 24 (3) of the Parliamentary Elections Act No 1 of 1981 of Sri Lanka (“PEA”). It is argued by many that the said section permits the Election Commission (“EC”) to postpone the election “only in one particular electoral district” and as such, section 24 (3) is not applicable to the conduct of a “General Election” in multiple electoral districts.

As this has led to many argument I proceed to interpret the relevant provisions of the Constitution and the PEA objectively without being obscured by political bias.

Sec. 24(3) of the PEA reads as follows;

“Where due to any emergency or unforeseen circumstances the poll for the election in any electoral district cannot be taken on the day specified in the notice relating to the election published under subsection (1), the Commissioner may, by Order published in the Gazette, appoint another day for the taking of such poll, and such other day shall not be earlier than the fourteenth day after the publication of the Order in the Gazette”. (emphasis added)

It appears that the words “any electoral district” has been misinterpreted to say that section 24(3) applies only to “one electoral district” and therefore has no application to the conduct of a General Election. A lay person forming that view after a literal reading of the above section is understandable. However, I am truly perplexed having seen the same argument being advanced by persons who are well versed in the field of Law. I respectfully disagree with that view.

Election Commissioners

Those who interpret Sec. 24(3) of the PEA in such a restrictive manner do so by overlooking Sec. 24(1) of the same Act.  Sec. 24(3) should not be considered in isolation and must be read in conjunction with Sec. 24(1) to understand the purposive meaning of those sections.

Sec. 24(1) of the PEA is reproduced below: 

1. Upon the receipt of a report under Section 22 in respect of an electoral district the Commissioner shall publish a notice in the Gazette specifying

a) the electoral district in which the election is contested;

b) the names of the candidates in order of priority as set out in the nomination paper of each recognized political party and independent group for election as Members of that electoral district and  the approved symbol allotted to such party or group and in the case of an independent group the words ”Independent Group” and the distinguishing number, if any;

c) the situation of the polling station or polling stations for each of the polling districts in that electoral district and the particular polling stations, if any, reserved for female voters.

2. Where due to any emergency it is necessary that the situation of any polling station should be different from that specified in a notice published under subsection (1) the Commissioner may cause the situation of that station to be altered in such manner as he may, in his absolute discretion, determine.

As can be seen from the above, Sec. 24(1) throughout refers to a “single electoral district”. If the same literal/restrictive interpretation of Sec. 24(3) is applied to Sec. 24(1), the power of EC to conduct elections will be restricted only to “one electoral district”.  If that be the case, the EC will never be able to hold a General Election in multiple districts. When interpreting a statute such as PEA, a purposive approach has to be taken. Literal interpretation of these sections will lead to absurdity and will defeat the purpose for which those sections have been enacted. 

Section 24 of the PEA has been carefully drafted in compliance with the principles of legal drafting with intent to cover a General Election as well as By-Elections. It is a rule of statutory construction that singular includes plural and vice-versa. Therefore one has to clearly understand that Sec. 24 applies to “one, several or all twenty two electoral districts” depending on the nature of the election i.e. whether it is a General Election or a By-Election. 

Sec 24 of the PEA operates on the basis that a General Election encapsulate twenty two separate elections held separately in twenty two electoral districts. When one examines the two Gazette notifications published by the EC, it is evident that the EC has listed all twenty two electoral districts in the schedule to those Gazettes which supports my argument. If a restrictive interpretation is applied to Sec. 24 then the EC will not be able to list all 22 electoral districts in the same Gazette notification.

It is undisputed that the Constitution is the Supreme Law of the land and that it prevails over any other statute which contravenes the provisions of the Constitution. However, when the Constitution is silent or does not stipulate to the contrary, actions taken following the procedure laid down by other legislation enacted by the Parliament do not render those actions illegal.

The operation of the provisions of the Constitution and the PEA on the conduct of elections should be clearly understood. Whilst the Constitution dictates to the President to commence the process of the General Election by issuing the necessary Proclamation, the PEA stipulates the procedural aspect of the election. Therefore, the EC has to follow the procedure laid down in the PEA to conduct elections as the Constitution is silent on the procedural aspect of elections. 

Article 70(5) of the Constitution mandates the President to nominate “a date or dates” for the election and summon the Parliament to meet on a date not later than three months after the date of such Proclamation. 

Article 70(5) reads;

“70(5)(a) A Proclamation dissolving Parliament shall fix a date or dates for the election of Members of Parliament and shall summon the new Parliament to meet on a date not later than three months after the date of such Proclamation. (emphasis added)”.

It is evident that the use of the word “shall” in the above Article makes it mandatory for the President to specify two dates i.e the date for elections and a  date for the new Parliament to meet. The said Article 70(5) does not stipulate that the election “must be held” on the date nominated by the President or that the “new Parliament must meet” on the date specified in the Proclamation. If that was the case, it would have been mandatory for the EC to conduct the election “only on the date specified” in the President’s Proclamation and would enable the new Parliament to meet “only on the date specified” by the President in that Proclamation.  

The purpose behind the requirement for the President to nominate the date for the elections and date for the for the Parliament to meet is to prevent the country from moving towards a dictatorial governance undermining the Legislature. This is in keeping with the doctrine of Separation of Powers on which the Constitution is based.

However, with the dissolution and initiating of the process of elections, President’s  role with regard to the elections comes to an end. Then the baton is passed on to the EC and it becomes the task of the EC to conduct the elections as expeditiously as possible in the Public Interest.

The procedural aspect of conducting the election is stipulated by the PEA and not by the Constitution. Therefore, it is incorrect to state that the steps taken by the EC under the PEA to conduct the elections violates the Constitutional provisions.

it is pertinent to examine the following questions raised by some who argue that the EC is in violation of the Constitution and the PEA. 

1. Have unforeseen circumstances arisen after the President’s Proclamation dated 2nd March enabling the Commission to act under sec 24(3) of the Act?

Some argue that the EC has no basis to act under sec. 24(3) on the basis coronavirus as the said threat was very much there when EC commenced action in relation to elections. They argue that as such coronavirus cannot be considered as an unforeseen circumstance envisaged by sec. 24(3) of PEA.

The WHO declared coronavirus as a global pandemic only on 11 March 2020. On 10 March a 52 year old Sri Lankan tour guide working with a group of Italians was tested positive for COVID-19. Therefore the President’s Proclamation dated 2 March 2020 dissolving the Parliament predates the declaration of COVID-19 as a pandemic by the WHO. Accordingly, at the time of the President’s Proclamation the coronavirus had not escalated in the country to such an extent that holding elections was not possible.

Situation in relation to coronavirus changed rapidly. It still keeps on changing. Therefore, the EC has to take decisions as the prevailing situation demands. EC has been confronted with new challenges due to the COVID-19 situation and will have to adopt accordingly. Therefore, there is no merit in the argument that the EC does not have a basis to resort to Sec. 24(3) of the PEA. 

The critical question is whether at the time the EC took the decision to act under Sec. 24(3), there was a situation which justified the postponement of the elections. If the answer is in the affirmative it cannot be said that the action by the EC contravenes the PEA.

2. Does Article 70(7) prevent the EC from resorting to sec 24(3)?

It is argued that the fact the President has not reconvened the Parliament acting under Article 70(7) of the Constitution indicates that the President has not acknowledged that an emergency has arisen. It is further argued that accordingly there is no basis for the EC to determine that an emergency has arisen. 

Firstly it is immaterial for the EC to consider whether the President considers an emergency has arisen or not as EC functions independent of the President.

Article 70(7) of the Constitution stipulates that if at any time after the dissolution of Parliament, the President is satisfied that an “emergency” has arisen of a such a nature that an earlier meeting of Parliament is necessary, he may by Proclamation summon the Parliament which has been dissolved, and such Parliament shall stand dissolved upon the termination of the “emergency” or the conclusion of the General Election, whichever is earlier (emphasis added).

It is important to note that the word “may” clearly indicates that Article 70 (7) does not make it mandatory but it is discretionary for the President to summon the dissolved Parliament. The President has to be satisfied that;

(a) an emergency has arisen; and 

(b) that earlier meeting of the Parliament is necessary. 

Even if the President is satisfied that an emergency has arisen, but is not satisfied that an early meeting of the Parliament is necessary then he is not bound to summon the Parliament under Article 70 (7). It could very well be because the President is of the opinion that the existing laws are more than sufficient to cater to the current crisis and enactment of new laws are not required. Therefore non summoning of the dissolved Parliament by the President does not necessarily lead to the conclusion that the President does not consider that an emergency situation has arisen.

3. Has the EC usurped a constitutional power vested in the President in postponing the General Elections under sec.24(3) of the Act when the EC is only empowered to take action in relation to one electoral district?

As argued previously, Section 24 of the PEA makes reference to “one electoral district”. However, a purposive interpretation of the said section makes it clear that the EC can act in respect of all 22 electoral districts. Therefore the argument that the EC has usurped the power of the President when it acts under Sec. 24(3) of the PEA is not valid in law.

4. Having changed the date of General Election to 20th June does the EC intend to summon the new Parliament?

PEA read in conjunction with Section 18 of the Interpretation Ordinance makes it clear that the EC is empowered to change the date of election. Whilst holding elections remains the responsibility of the EC, in terms of Article 33(2)(C) read with Article 70 of the Constitution, summoning the Parliament remains the function of the President. The law does not prevent the President from summoning the newly elected Parliament acting under the said Articles once the election is conducted and a new Parliament is elected. 

5. Will the Proclamation issued by the President on 2nd March lapse on the expiration of three months, if the new Parliament has not met by 2nd June?

As discussed above, Article 70(5) does not make it mandatory that the new Parliament meets before the expiry of three months from the date of the Proclamation of the President. The requirement under the said Article is for the President to only nominate a date for the new Parliament to meet. With nomination of that date the President has fulfilled his constitutional obligations.

What if the new Parliament is prevented from meeting due to reasons beyond anyone’s control due to a natural disaster such as severe flooding or a Tsunami?

If the Parliament is unable to meet on the date specified by the President due to such unforeseen situation, all actions taken up to that point in time are not rendered invalid and will not require the recommencement of the whole process. 

The President has dissolved the Parliament in terms of Article 70 of the Constitution after it has completed a term of four years and six months. Therefore, the President has lawfully dissolved the Parliament.

Arguments have been mounted to the effect that if the new Parliament cannot be convened within three months from the date of the Proclamation of the President,  it will lead to a violation of the fundamental rights of people and undermines the sovereignty of people and the rule of law.

A claim for breach of a fundamental right arise from an executive action. In this instance the executive action is holding of elections. The EC is tasked with carrying out the said executive action. The EC has commenced the process and has already fixed a date for the elections. If the EC delays holding the elections unreasonably it may give rise to a valid argument that it leads to a violation of a fundamental right of the registered voters. However, there is no provision in the Constitution which stipulates that reconvening the Parliament before the expiry of three months from the date of dissolution is mandatory. Whilst the executive should aim to summon the new Parliament as soon as possible, it is hard to imagine how the failure to do so due to reasons beyond anyone’s control can be viewed as a breach of a fundamental right of a voter.

Conclusion

Those who call for the summoning of the dissolved Parliament should explain whether there is any need for the Parliament to meet. This is a time for action by the health authorities and other connected agencies which come under the executive arm of the government. The need for reconvening the Parliament will only arise if new laws are needed to be introduced to curb the situation. If there is no such requirement then it will not be mandatory for the President to summon the Parliament.

*Tatiyajith Karunaratne (LL.M Melb.) Barrister & Solicitor, Attorney-at-Law – Former Deputy Solicitor General of the Attorney General’s Department of Sri Lanka, Former Visiting Lecturer in Constitutional Law at the Sri Lanka Law College – Currently a Crown Prosecutor in Australia.

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Latest comments

  • 3
    0

    Hi Tatiyajith

    Once president knew, from ECs letter, that he couldn’t fulfil his oblication under the Article 70(5), can he deligate his obligation to EC?.

    Thanks

    • 0
      0

      PART ONE

      Dear Kandyan and Atu,
      .
      Both of you sound honest people.
      I don’t know whether “kali” is one of those whom you call “usual commentators”, but this guy who calls himself “S. Chaminda Pasqual” has made three of the nine comments seen so far. He makes many comments which are so silly that they may finally have driven away most others.
      .
      As for me, my real name is Panini Edirisinhe and my NIC Number is 48 3111 444 V. I’m not a lawyer, either – I can be most accurately described as a “gabada iskole mahattaya” who has now retired. People like us like to be serious about subjects like elections. Please study carefully this account of how the Presidential Election was held.
      .
      https://www.colombotelegraph.com/index.php/was-the-presidential-election-free-and-fair-when-colombo-returning-officer-called-sajith-premadasa-the-son-of-a-donkey-asks-prof-hoole/comment-page-1/#comments
      .
      I have made many comments there – more than twenty. The first were serious, but you will find that on the second page two or three of us started clowning. However, by the end I was once more making serious comments – because this was a serious business, and I’m not good at humour.

      • 1
        0

        Dear Iskole Mahaththayo,

        You are becoming every interesting to me – really you are.. but
        .
        Please dont be naive – I am sorta of a sensitive person, but am not living in the country.as you are. So knowing the ground realities in the country, I would not want you to face any kind of unexpected problems by exposing your personal information on this or any other platforms. You have been only one to repeatedly come with your info on this platform…. my mother in law let us know she does not open the door today if she is not sure of the ones that press her door bell (she lives in colombo district). I am also known to few lectuerers in CMBO Uni, they share me the same – that they would not trust anyone easily. My mother in law an early octgenarian – she think that the current govt is doing well being based on the TV news. We make every effort to make her clear by giving her facts – then only she realizes.. that we are always right – … she repeats ” my dear son – today srilanka is filled with uncivilized people – unlike during my childhoold days ( mid 70ties to earliy 90ties). She compares it with that of WANATHAMULLA kunukanda…

        You and I have much in common – we respect all equally. We dont care about the race, religion or other factors when we speak out the truth. That Iskola mahathayo would not be a match to srilanken way of life living in the country, but to tell you that cant be without while living in Europe.
        :
        But trust me, if you would interview a cross section of lanken society today, how many of them would be honest and genuine minded ?

      • 0
        0

        Mr. Mrs. Sinhala_Man,
        /
        You are calling yourself …..”” as a “gabada iskole mahattaya” who””…..
        \
        “gabada” is a Hindi word with the meaning of “foolish”
        /
        You are calling yourself as a “foolish iskole mahattaya”.

        • 0
          0

          Pasqual, sorry, read “gambada”, instead of “gabada”.
          .
          Dear leelagemalli,
          .
          Sincere thanks for your concern, but if I start getting scared, I can contribute little, and it will be “living-death” – is how I look at it. I’m not asking anybody else to emulate me, but people can at least be honest – as you are.
          .
          Never mind all that: please, everybody, study that link about the Presidential Elections. It is not because we should dwell on past cheating, but that will show us laymen how little we should trust the average lawyer.
          .
          Observe for yourself the road that they’re trying to take us down. It will spell disaster for our grandchildren.

    • 0
      0

      PART TWO
      .

      Pasqual, has a great joke that he has repeated at least twenty times: he refers to me as “Mr & Mrs Sinhala_Man” although he has unambiguously been given my name. His joke is so funny that I hope he will repeat it at least a hundred times, since Sri Lankans need entertainment.
      .
      I think that “kali”, whose identity I don’t know, has made an honest effort to answer your question. I’m tired of all this. Let this Tatiyajith fellow and Pasqual allow an American citizen become our Emperor!
      .
      Then you can enjoy the luxury of abandoning all thinking. I have given my reasons for feeling that most voters and the 34 losing candidates have all proved that they are fools.
      .
      I mean that very seriously.
      .

      • 0
        0

        Mr. Mrs. Sinhala_Man,
        /
        For your understanding (You idiots seems to suffer from lack of common sense) I will put my answer pointwise.
        \
        First – You are highlighting an article written by a person who publicly wanted to “”potentially make GR stateless”.
        /
        And author himself is a duel citizen.
        \
        And that person works as one of the election commissioners.
        /
        And that same person wanted to say election is not fair because Colombo returning officer once shared a FB post.
        \
        You can’t see the irony….?
        /
        And…..
        2019 presidential election……..
        \
        Damaso G. Magbual – Chairman of ANFREL himself answered your question by saying “That is not cheating. That is election propaganda.”
        /
        And…..
        \
        PAFFREL by saying “can be described as the most peaceful and free election held since 1982”
        /
        And….
        \
        European Union Election Observation Mission –
        “The election campaign and process have unfolded in an overall peaceful environment”
        “confirms the stability of the democratic institutions and attachment of the Sri Lankan people to their fundamental rights and freedoms”
        “Preliminary findings indicate that the fundamental freedoms and rights of the citizens of the country have largely been respected”

        • 0
          0

          Dear Pasqual,
          .
          Most guys
          when they are asked to prepare a report try to keep the Establishment happy.
          .
          It all depends on why all of us are commenting, what our aims are, etc. We must keep in mind that finally what all these exchanges result in – what sort of society we leave behind for succeding generations matters. I see my life as being almost over.
          .
          Hoole doesn’t seem to bother with what the end result for himself. When the Maldives Parliamentary Elections were held the elections Commissioner in the Maldives hadn’t wanted Hoole there – because he had presented too honest, too serious, an account of the Presidential Elections there. I think that he was the only guy who studied the background before going there. For the others it’s just a job.
          .
          I don’t know how sincere you are (thanks on the note relating to that Book with an interesting pedigree that you had found – that seemed slightly less fencing.)
          .
          See if exploring this article (by me) makes sense. I was amazed myself by that comment which indicated that Hoole and Rasika Peiris’s Report which you will find embedded there. If you spend only five minutes considering what’s happening in the Maldives right now, there’d be no point my sending this sincere message to you.
          .
          https://www.colombotelegraph.com/index.php/the-maldivian-parliamentary-elections-2019-where-a-happy-result-can-be-predicted/
          .
          To see how Covid-19 is spreading (mainly among expat Bangladeshi’s in the Maldives) go here:
          .
          https://raajje.mv/en
          .
          This is a totally inter-dependent world today.

          • 1
            0

            Dear Mr SM,
            .
            Very good morning from Berlin !
            .
            What is the purpose of commenting to a person who would never grasp it, but being blind stay behind Rajaakshes ?
            .
            I happened to watch a video clip yestreday, if the court would stand against, incumbent presidency would be announced as null and void.

            https://www.youtube.com/watch?v=SG7Vrarm6aA
            https://www.youtube.com/watch?v=htg3x5vukEY
            .
            By the time, Nandasena, the people’s choice was provably an US citizen. Meaning he has fully violated the prerequisites of the PE nominations.

            Can a Gotler be a trustful person anymore ?

          • 1
            0

            Dear SM,
            :
            See how some slaves how obsequeious they have been ?
            .
            Is Pasqual different from the man in this video ?
            .,
            https://www.youtube.com/watch?v=0oqshtb8ZaY

            Kamhale balla can fit Mrs Pasqual very well.

          • 0
            0

            Mr. Sinhala_Man,
            /
            The world itself is imperfect.
            Creation itself is imperfect.
            Can you expect something perfect happening…….
            Results matter.
            /
            All lovers swear more performance than they are able, and yet reserve an ability that they never perform vowing more than the perfection of ten, and discharging less than the tenth part of one.

            —William Shakespeare

            • 1
              0

              News of the day !!!!! for me..

              Thank you Mr Pasqual -this is because you have been decent to our Guru Mr SM.

              We the regular CT readers would not want to see you attacking him or the like gentle sort of fine personalities.

          • 0
            0

            Yes, yes, Pasqual,
            .
            That is all very well. I’m surprised that you know the play, Troilus and Cressida. I actually taught it in the Maldives. It’s rarely prescribed for exams, as you would know.
            .
            In the Maldives, the better kids did The Cambridge Proficiency in English test when doing their London A. Levels. The majority sat the Cambridge First Certificate in English. I don’t know what London offers now, but at that time, the only test available in English was a Literature test, with three papers, one of them Open Book. It was not made available in the country.
            .
            There then was only one school where A. Level work was done back in 1993/94. Those who desired to specialise in English (only about ten) sat the optional Literature paper. Worldwide, there may have been another thirty sitting. The prescribed novel was Virginia Woolf’s “To the Lighthouse”. See what I mean – totally off the beaten track. All Sri Lankans have, of course, heard of Virginia’s husband, Leonard.
            .
            You see how easy it is for me also to go off at a tangent!
            .
            Why not examine what Hoole did in the Maldives? That is what I suggested in the first place. You know that you’ve fudged it – but been nice to me -for once!
            .
            Now, as minimum, read at least this:
            .
            https://www.colombotelegraph.com/wp-content/uploads/2019/04/Report-of-the-Sri-Lankan-Observer-Mission-to-the-Maldivian-Presidential-Election-of-23-Sept.-2018.pdf

  • 1
    3

    I am not a lawyer. Hence, I do not comment on law interpretations. However, this article is very clear for me to understand some of the law professors interpret the constitution and PEA bias manner to please a section of politicians. I believe this writer is an independent professional. So, I wonder why usual commentators here gone hiding.

  • 12
    0

    Is The Election Commission In Breach Of Sec. 24(3) Of The Elections Act?

    *** It is wasting time talking about an Election in a Coutry which ruled by an Illegitimate ( American Citizen) Preisdent to replace a PM who himself was appointed by default.

    • 1
      9

      Mr. kali,
      /
      Please stop lying.
      \
      # Sri Lankan courts decided that there is no issue with GR’s citizenship.
      # Election commission decided that there is no issue with GR’s citizenship.
      # Department of Immigration & Emigration decided that there is no issue with GR’s citizenship.
      # Department for Registration of Persons decided that there is no issue with GR’s citizenship.
      # Government of US decided that there is no issue with GR’s citizenship.
      # Sri Lankan people declared that there is no issue with GR’s citizenship and elected him as our president.
      # There was no issues with GR’s citizenship when he was carrying arms and risking his life for the country for twenty long years.
      # There was no issues with GR’s citizenship when he was Deputy Commandant of the Sir John Kotelawala Defense Academy training countries elite.
      # There was no issues with GR’s citizenship when he was risking his life as permanent secretary of the ministry of defense spearheading the war against LTTE.
      /
      What else do you need to clarify GR’s citizenship

      • 11
        0

        Pasqual
        Please stop lying.
        Ask Gotha to stop lying.
        1) Sri Lankan courts decided that there is no issue with GR’s citizenship.
        *** Man Sri Lankan Judges are all CROOKS. Some out of fear and some out of Loyalty decided in favour of an American which Gotha still is.
        2) Election commission decided that there is no issue with GR’s citizenship.
        *** Now we know all about the Commissioner after CT exposed him .Another CROOK.
        3) Department of Immigration & Emigration decided that there is no issue with GR’s citizenship.
        *** Another Corrupt Department only answerable to Gotha the CRIMINAL
        4)Department for Registration of Persons decided that there is no issue with GR’s citizenship.
        *** Same CORRUPT Servant
        4) Government of US decided that there is no issue with GR’s citizenship.
        *** This is where none of you can fool the World. State Department in answer to a Query raised by Basil passed Judgment by banning Shanvendra whose Boss was Gotha still and American.
        To cap it all the Californian Judge allowed the appeal of Ahimsa and stated that Gotha can be Prosecuted after his term as President ends.
        Who are you all Racists trying to Fool. WAKE UP.
        Gotha an American is on DEATH ROW

  • 1
    7

    Mr. Tatiyajith Karunaratne,
    /
    While thanking you for the pain you have taken to write this…………
    \
    I quote from your article.
    /
    Para 1 – Your interpritation.
    ———-
    “”postpone the election “only in ONE particular electoral district””
    ———-
    Para 3 – PEA
    ———-
    “” the poll for the election in ANY electoral district cannot be taken””
    ———-
    End of quote.
    \
    ONE – The lowest cardinal number.
    ANY – Refer to one or some of a thing or number of things, no matter how much or how many.
    /
    Throw 10 toffees on a table. Ask your kids to take ANY amount. Can you punish them for taking all 10.
    \
    “It is impossible to foresee and so, by-laws provide for all accidents and necessities that may concern the public.”
    “There is a latitude left for the Executive Power to do many things of choice which the laws do not prescribe.”
    Political Theorist John Dunn
    John Lock’s Two Treatises of Government
    courtesy – Malinda Seneviratne.

    • 0
      4

      And….
      On the same note…
      What about 24(1) – 2 “any polling station”

  • 5
    0

    Pasqual Ignorant Enjoy the following

    Ninth Circuit Court of Appeals Issues Decision in Case Against Gotabaya Rajapaksa

    San Francisco, March 2, 2020: Last week, the Ninth Circuit Court of Appeals granted Ahimsa Wickrematunge’s request to vacate the lower court’s ruling that Gotabaya Rajapaksa is entitled to common law foreign official immunity for acts committed while he was Secretary of Defense of Sri Lanka. Ahimsa’s lawsuit, filed last April, sought to hold Rajapaksa – now the president of Sri Lanka – responsible for his alleged involvement in the assassination of her father, famed journalist Lasantha Wickrematunge, and in the widespread and systematic targeting of journalists perceived to critical of the government. Ahimsa is represented by the Center for Justice and Accountability (CJA)
    The Ninth Circuit Court of Appeals also granted Ahimsa’s request to dismiss her case without prejudice, as Rajapaksa’s accession to the presidency of Sri Lanka last November gave him immunity from suits in US courts for so long as he remains president. The Ninth Circuit’s decision clears the way for future litigation against Rajapaksa once he no longer enjoys immunity as a head of state.
    “This ruling is a victory, and a message to Gotabaya Rajapaksa: His maneuvers to escape justice for his role in my father’s assassination continue to fail. He will not enjoy immunity forever, and his presidency can only delay, not prevent, accountability. Those of us who lost everything to his barbarism and bloodshed will never give up our fight for justice,” says Ahimsa Wickrematunge.

  • 5
    0

    Tatiyajith,

    I have just noticed that you are a State Prosecutor in Australia and I am perplexed at your contribution towards the understanding of the Electoral Mechanism and the provisions that govern the process and you seem to assume that Gotha is a legitimate President. In my view he lacks Legal and Moral Authority to govern as he is judged as Criminally culpable for Crimes against humanity alongside Shavendra by the State Department . If you would care to explain to me how you would advise Gotha if you were asked to advise how his Criminality would fit into the Constitution and his eligibility to Govern and be the guardian of the law handing out Pardons while he is still a foreign Citizen. No matter what the Courts in Sri Lanka say about his Sri Lankan Status ( which was given under Duress) is immaterial until his application to renounce the only Citizenship he has is approved by the American State Department. He continues to commit all these Crimes as an American Citizen and if I don’t hear from you I will assume that you agree with me.
    There is a saying Mounam means Samatham”

  • 0
    1

    Kali
    Sometimes you have to accept defeat gracefully, if proven wrong. GR’s citizenship issue was debated enough in CT and you all have commented on that in volumes. Finally, SC cleared him to contest and people voted him in. So this article is on another issue. You need to stick to the topic and argue with the writer’s assessment. If this writer’s interpretation is correct, this time as well SC will exonerate both Election Commission and the President from any wrong doing. I think people who commented criticising Mahinda Desapriya and Gotabaya Rajapaksa avoided commenting on this article realising they all got it wrong. Let’s see what SC decides. I am happy to accept that decision as I am not and expert in law.

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      Atu

      We may have discussed the issue of Gothas Citizenship in CT. But sadly in lawless Sri Lanka where there is no RULE OF LAW you and I are not the DECISION makers. It is Crooked Law and Judges under the Control of a Hardened CRIMNAL Gotha who sadly interpret the law. Gotha got away with Murder and I totally disagree with. I hav not been defeated.

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    Srilanka has too many lawyers and educated professionals who are good at explaining the constitution of Srilanka according to their interest. Srilanka is currently has a Supreme Court which can resolves when there is a confusion. Why no one prepared to ask the Supreme Court a decision? Do we need a Australian crown prosecutor to write his interpretation. I understand there are number of cases filed in Srilanka court regarding conducting election in an environment like Coronavirus which is very dangerous and killed more than 250000 lives so far within few months.
    Mr. Tatiyajith Karunaratne,
    How can a lawyer like you proof if there is constitutional problem?

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    What us applicable to one district can be applied to more than one. But then whether it is one or many, a district-wise evaluation has to be done in invoking such postponements. AT THE TIME it was decided to postpone the elections without specifying a date of conducting the postponed elections (which is definitely a violation of the law) where was such district wise evaluation available. The elections commission is a public body and its conduct should be transparent. For starters can the EC produce “situation reports” of Government Agents cum District Secretaries for each of the Districts to justify its decision in every District? If the EC was mindful it should have published the notice of postponement the districts named, which can be the entire 22 polling districts so named. Some joke that the EC was under a “Hoolian effect”.

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