{"id":157624,"date":"2016-02-16T00:00:57","date_gmt":"2016-02-15T18:30:57","guid":{"rendered":"https:\/\/www.colombotelegraph.com\/?p=157624"},"modified":"2016-02-21T00:20:39","modified_gmt":"2016-02-20T18:50:39","slug":"cpa-quashes-its-own-objection-to-fonseka-appointment","status":"publish","type":"post","link":"https:\/\/www.colombotelegraph.com\/index.php\/cpa-quashes-its-own-objection-to-fonseka-appointment\/","title":{"rendered":"CPA Quashes Its Own Objection To Fonseka Appointment"},"content":{"rendered":"

The Centre for Policy Alternatives<\/a><\/span>‘\u00a0(CPA) foreign-funded \u2018Public Interest Litigation\u2019 and advocacy programme in jeapordy<\/em><\/strong><\/p>\n

The CPA has suppressed the communiqu\u00e9 its Legal Department has drafted regarding Field Marshall Sarath Fonseka<\/span><\/a>\u2019s recent appointment to parliament as a ‘National List<\/span><\/a> MP’.<\/p>\n

Colombo Telegraph learns that CPA\u2019s Legal Department had drafted a communiqu\u00e9 in line with its long-standing position against appointing persons \u201cnot included in the National List<\/span><\/a> published under Article 99A of the Constitution\u201d. However, this has since been suppressed, Colombo Telegraph learns.<\/p>\n

In 2004 the CPA challenged the right of Ratnasiri Wickremanayake<\/span><\/a> and Wijeyadasa Rajapakshe<\/span><\/a> to occupy National List Seats of the UPFA as Members of the 13th Parliament, due to the fact that neither of the two were included in the National List published in the Government Gazette prior to the General Election of 2nd April 2004, under Article 99A of the Constitution. Neither had their names been included in the Nomination Papers of the UPFA.\"Saravanamuttu<\/a><\/p>\n

\u201cIn addition to Article 99A of the Constitution, the Parliamentary Elections Act No. 1 of 1981 also contains certain statutory obligations that must be followed in replacing vacated parliamentary seats. In particular, CPA wished to draw the Commissioner\u2019s attention to Section 64 (5) of the said Act, which seems to suggest that upon vacation of a national list seat, the secretary of a political party or the leader of an independent group may nominate any member of such party or group to replace the vacancy,\u201d the CPA said at that time.<\/p>\n

The CPA also wrote to the Elections Commissioner based on media reports to the effect the two would enter Parliament through the UPFA’s National List.<\/p>\n

On Wednesday 7th April 2004, the CPA wrote to the Commissioner of Elections expressing “deep concern at certain newspaper reports that various persons whose names do not appear in the nomination lists or lists under Article 99A of the Constitution (i.e., National List) as submitted to the Commissioner during the nomination period, are to be nevertheless nominated to Parliament as National List members”.<\/p>\n

The CPA has being spending millions in donor funds for its \u201cPublic Interest Litigation<\/span><\/a> and Advocacy Programme\u201d<\/p>\n

On the national list cases alone the CPA has spent over one million rupees including the lawyers\u2019 fees.<\/p>\n

The CPA had earlier won a case against appointing Samarawera Weerawanni as a Provincial Council member in 2002. In 2004, surprisingly, even after the Appeal Court had ruled that it does have the power to proceed to consider the legality of the appointment of Wickramanayake, Wijeyadasa and any others appointed as Members of Parliament, the CPA withdrew the case.<\/p>\n

It was then alleged and widely believed that the reason behind the move was that CPA\u2019s executive director Dr. Paikiayasothy Saravanamuttu was earmarked to be appointed as the Minister of Foreign Affairs by Ranil Wickremesinghe in the event he won the 2005 presidential elections, for which of course Saravanamuttu would have had to be shepherded into Parliament via the UNP’s National List. Had a ruling been obtained against Wickramanayake, Wijeyadasa and others, Saravanamuttu’s parliamentary and ministerial ambitions would have been buried.<\/p>\n

We publish below all the relevant press releases issued by the CPA re this issue;<\/p>\n

APPEAL COURT RULES THAT IT HAS THE POWER TO CONSIDER LEGALITY OF THE APPOINTMENT OF TWO MPS<\/a><\/strong><\/span><\/p>\n

7th July 2004<\/p>\n

The Court of Appeal today (7th July 2004) ruled that it does have the\u2028power to proceed to consider the legality of the appointment of\u2028RATNASIRI WICKRAMANAYAKE and any others appointed as Members of\u2028Parliament through the UPFA National List, although their names\u2028were not included in the National List published under Article 99A\u2028of the Constitution or in the Nomination Papers of the UPFA.<\/p>\n

Justice Saleem Marsoof, PC, President of the Court of Appeal and Justice\u2028K. Sripavan, made order overruling the preliminary objections to\u2028the Appeal Court hearing two cases filed by the Centre for Policy\u2028Alternatives (CPA) and Rohan Edrisinha, Senior Lecturer of the Colombo\u2028Law Faculty in that regard, which were raised by the lawyers for\u2028the UPFA General Secretary, Ratnasiri Wickramanayake and other respondents.<\/p>\n

The Court took the view that some of the issues raised as preliminary\u2028objections were premature while one did not arise.<\/p>\n

The Court of Appeal will now proceed to consider the legality of such\u2028appointments, with these two cases due to be next taken up on 29th\u2028July 2004.<\/p>\n

M.A. Sumanthiran and Viran Corea appeared for the Centre for Policy\u2028Alternatives (CPA) and Rohan Edrisinha, respectively. Dr. Jayampathy\u2028 Wickramaratne, PC appeared for the UPFA General Secretary. D.P.\u2028Kumarasinghe, PC appeared for Ratnasiri Wickramanayake. Anil Obeyesekere,\u2028 PC appeared for Anuruddha Ratwatte (who was also tipped to be appointed\u2028in this way through the National List) and Ikram Mohommed, PC appeared\u2028for the SLMC General Secretary.<\/p>\n

\n

Press Release Re: National List Nominations, Constitutional and Statutory Obligations, and Representative Democracy \u2013 7th April 2004<\/a><\/span><\/strong><\/p>\n

On Wednesday 7th April 2004, the Centre for Policy Alternatives (CPA)\u2028 wrote to the Commissioner of Elections expressing deep concern at\u2028certain newspaper reports that various persons whose names do not\u2028appear in the nomination lists or lists under Article 99A of the\u2028Constitution (i.e., National List) as submitted to the Commissioner\u2028during the nomination period, are to be nevertheless nominated to \u2028Parliament as National List members.<\/p>\n

The letter sought to bring to the Commissioner\u2019s attention that\u2028if a political party or independent group adopts a course as indicated\u2028above, they would be acting in contravention of Article 99A of the\u2028Constitution as amended. That provision seeks to introduce the principle\u2028of nominated Members of Parliament, and in doing so imposes certain\u2028 safeguards so as to prevent abuse. Significant in this regard is\u2028the constitutional duty placed upon the Commissioner requiring him\u2028to give notice to the public of persons nominated by parties as\u2028 National List candidates, so that voters have access to that additional\u2028information prior to casting their votes.<\/p>\n

In addition to Article 99A of the Constitution, the Parliamentary Elections\u2028 Act No. 1 of 1981 also contains certain statutory obligations that\u2028must be followed in replacing vacated parliamentary seats. In particular,\u2028CPA wished to draw the Commissioner\u2019s attention to Section\u202864 (5) of the said Act, which seems to suggest that upon vacation\u2028of a national list seat, the secretary of a political party or the\u2028leader of an independent group may nominate any member of such party or group to replace the vacancy.<\/p>\n

CPA urged the Commissioner to reject such an interpretation of the Act\u2028which would serve to defeat the will of the people, in that candidates\u2028whose merits the public had not considered in the exercise of the\u2028franchise, would nevertheless be represented in Parliament.<\/p>\n

CPA\u2028reminded the Commissioner of the view taken by the Supreme Court\u2028in the recent case of Centre for Policy Alternatives, Saravanamuttu\u00a0and Edrisinha v. Dissanayake and Weerawanni (2002) SC 26\/27\/2002,\u2028where the Court stated:\u00a0\u201cWhen\u00a0constitutional or statutory provisions have to be interpreted, and\u00a0it is found that there are two possible interpretations, a Court\u00a0is not justified in adopting that interpretation which has undemocratic\u00a0consequences in preference to an alternative more consistent with\u00a0democratic principles, simply because there are other provisions,\u00a0whether in the Constitution or another statute, which appear to\u00a0be undemocratic.\u201d<\/p>\n

In\u2028this context, CPA asked the Commissioner to firmly resist any attempt\u2028made by any political party or group to nominate persons whose names\u2028are not in the district nomination papers or national lists submitted\u2028to him during the nomination period.<\/p>\n

\n

Appeal Court issues Notice in case challenging rights of Ratnasiri Wickremanayake and Wijedasa Rajapakshe to sit as MPs \u2013 5th July 2004<\/a><\/span><\/strong><\/p>\n

5th July 2004<\/p>\n

A Writ Application filed by Sunanda Deshapriya, a Co-Convenor of the Centre\u2028for Monitoring Election Violence (CMEV) was supported in the Court\u2028of Appeal on 5th July 2004 before Justice Saleem Marsoof PC, President\u2028of the Court of Appeal, and Justice K. Sripavan by Attorneys at\u2028Law M. A. Sumanthiran and Viran Corea.<\/p>\n

The application challenges the right of Ratnasiri Wickramanayake and\u2028 Wijeyadasa Rajapakshe to occupy National List Seats of the UPFA\u2028as Members of the 13th Parliament, due to the fact that neither\u2028 of the two were included in the National List published in the Government\u2028 Gazette prior to the General Election of 2nd April 2004, under Article\u202899A of the Constitution. Neither were their names included in the\u2028Nomination Papers of the UPFA.<\/p>\n

The Petitioner complains that the practice adopted by the UPFA General\u2028 Secretary, Susil Premjayanth is unconstitutional, undemocratic and\u2028weakens the credibility of the electoral system, in that the voters\u2028of the country have a right to know who might be appointed by a\u2028given party even on the National List when deciding which party\u2028to vote for. It was submitted to Court, that the whole Constitutional\u2028 requirement that the National List be published before a General\u2028 Election was rendered meaningless and futile, unless all nominations \u2028to fill vacancies in respect of the National List seats of a party\u2028are filled out of those whose names were made known to the public\u2028through the published National List or Nomination Papers published \u2028prior to elections.<\/p>\n

Therefore, the Petitioner seeks an Order declaring that Ratnasiri Wickramanayake\u2028 and Wijayadasa Rajapakshe have no right to sit and act as Members \u2028of Parliament, as well as an Order against the Elections Commissioner\u2028preventing him from accepting any nominations to fill vacancies\u2028in respect of the National List in future, unless the names so nominated\u2028are contained in the relevant National List published under Article\u202899A or the Nomination Papers.<\/p>\n

The\u2028 Appeal Court considered these submissions of Counsel and issued\u2028notice on the Elections Commissioner, the UPFA General Secretary\u2028(Susil Premjayanth), Ratnasiri Wickramanayake & Wijayadasa Rajapakshe.\u2028The case will next be taken up on 2nd August 2004, on which date\u2028the Respondents may ask for time to file any objections they may\u2028have to the granting of the relief prayed for through the case.<\/p>\n

Court\u2028also requested the Attorney General to appear as \u2018amicus curiae\u2019\u2028to assist the Court should such a need arise.<\/p>\n

\n

CENTRE FOR POLICY ALTERNATIVES and DR. PAIKIASOTHY SARAVANAMUTTU,\u2028AND ROHAN EDRISINHA\u2028VS.\u2028DAYANANDA DISSANAYAKE AND SAMARAWEERA WEERAWANNI \u2028SC\u00a026\/27\/2002<\/a><\/strong><\/p>\n

The Supreme Court in a judgment which has far reaching implications\u2028 for the franchise and the protection of the sovereignty of the\u2028People overturned a decision of the Court of Appeal and issued \u2028a writ of certiorari quashing the election of the former Chief \u2028Minister of the Uva Province, Samaraweera Weerawanni as a member\u2028of the Provincial Council. The judgment was delivered by Justice\u2028 Mark Fernando with Justices D.P.S. Gunasekera and C.V. Wigneswaran \u2028agreeing.<\/p>\n

The two petitions filed by the Centre for Policy Alternatives and its Executive Director, Dr. Paikiasothy Saravanamuttu, and\u2028 Rohan Edrisinha challenged the interpretation given by the Commissioner\u2028of Elections, Dayananda Dissanayake, to Section 65 of the Provincial\u2028 Councils Election Act. Section 65 provides that when a vacancy \u2028occurs in a Provincial Council, the Secretary of the party to which\u2028the ex member belonged is entitled to nominate ?a person \u2028eligible for election? to fill the vacancy. If the Secretary\u2028fails to do so then the Commissioner will declare that the candidate\u2028who received the next highest number of preference votes is elected.<\/p>\n

The crucial question for interpretation that arose in the case\u2028was whether the Secretary could nominate ANY person to fill a vacancy\u2028or whether the Secretary could nominate only persons who contested\u2028the election and therefore had their names on the nomination list.\u2028The petitioners argued that permitting a Secretary of the party\u2028to nominate ANY person, even a non-candidate, ahead of candidates\u2028who went through the nominations process, campaigned, were subject\u2028to the scrutiny of the voters, and obtained preference votes, was\u2028absurd, and contrary to basic principles of representative democracy\u2028and the exercise of the franchise, undermined the checks and balances\u2028of the Elections Act, and the concept of devolution of power.<\/p>\n

When\u2028the case was first filed in the Court of Appeal over four years \u2028ago, the \u2028petitioners highlighted the bizarre consequences\u2028 of the Commissioner?s literal and technical interpretation.\u2028 Several Members of Parliament had been requested by their respective\u2028 parties to contest Provincial Council elections and project themselves\u2028as Chief Ministerial candidates. Many were reluctant to resign\u2028their seats in Parliament, in order to contest, as there was no\u2028guarantee that their respective parties would win sufficient seats\u2028to form provincial governments. They therefore nominated ?dummy\u2028candidates? for purposes of fulfilling the legal requirements \u2028with respect to nominations and campaigning etc. The Members of\u2028 Parliament, despite not being candidates, campaigned as their parties? nominees\u2028as Chief Ministers!! After the election, when it was evident that\u2028their parties would be in power within the relevant province, they ?ordered? the ?dummy\u2028candidates? who were elected to resign from the Provincial \u2028Council, they themselves, then, resigned their parliamentary seats,\u2028and thereupon, were nominated by the Secretary of the party to\u2028fill the Provincial Council vacancy. A non-candidate, someone who\u2028was not necessarily subject to the scrutiny of the voters of the\u2028province thus was parachuted in ahead of other candidates who received\u2028preferential votes from the voters of the Province.<\/p>\n

The Court of Appeal judgment did not focus on the consequences\u2028that the petitioners argued were contrary to constitutional first\u2028 principles, but relied more on the literal rule of interpretation.\u2028Since the Section 65 (2) allowed the Secretary of the party to\u2028fill a vacancy by nominating ?a person? such person\u2028could be ANY person. The Supreme Court by looking at Section\u2028 65 read as a whole held that there was an ambiguity and that\u2028in the event of an ambiguity the court can adopt the interpretation\u2028that is consistent with democratic values.<\/p>\n

When constitutional or statutory provisions have to be \u2028interpreted, and it is found that there are two possible interpretations,\u2028a Court is not justified in adopting that interpretation which \u2028has undemocratic consequences in preference to an alternative more\u2028 consistent with democratic principles, simply because there are\u2028other provisions, whether in the Constitution or another statute,\u2028which appear to be undemocratic.<\/p>\n

Another\u2028 significant feature of the judgment was that it challenged the\u2028 widely held \u2028myth that under the Sri Lankan Constitution and\u2028the system of proportional representation, the party is supreme\u2028and that this even trumps the will of the People. The Centre for\u2028 Policy Alternatives and Rohan Edrisinha have in recent years highlighted \u2028the dangers of the notion of ?party democracy? and \u2028its negative impact on representative democracy, the quality of\u2028 deliberation and debate in Parliament and the freedom of conscience \u2028of members of legislatures. They have argued consistently in a\u2028number of cases they have initiated or supported that ultimately\u2028 Members of parliament or provincial Councils are representatives\u2028of the PEOPLE not ambassadors of parties. In the Centre for Policy\u2028Alternatives, Saravanamuttu and Edrisinha v Dissanayake and Weerawanni\u2028, the Supreme Court refers to the ability to nominate an outsider\u2028as an anomaly. The Court then observes:<\/p>\n

Can such an anomaly be justified on the basis of the ?supremacy\u2028of the party?(or its secretary)over members and candidates?\u2028In my view it cannot, for this is not a domestic question pertaining\u2028to the party, party discipline, and\/or party officials, members \u2028and candidates. What is involved is the right of the electorate\u2028to be represented by persons who have faced the voters and obtained\u2028their support, and that in my view, is the general scheme of the \u2028Act. That is wholly inconsistent with Article 25 of the International\u2028 Covenant on Economic, Social and Cultural Rights, which recognizes\u2028that every citizen shall have the right and the opportunity to\u2028take part in the conduct of public affairs, directly or through\u2028freely chosen representatives.<\/p>\n

The\u2028 significance of the judgment is that it reaffirms the supremacy \u2028of the People\u2028 even against political parties and their functionaries.\u2028It attaches meaning to the choice of the people which is after\u2028all the rationale for the much maligned principle of preferential\u2028 voting. The People decide, not the party leadership. The party \u2028leadership may have some discretion, but the discretion is circumscribed\u2028by the will of the People. Only persons approved by the People\u2028can fill vacancies in Provincial Councils, not complete outsiders \u2028who may be lackeys of the party leader or secretary but have no\u2028nexus with the people of the province. It is now a matter of considerable \u2028interest to see how parties which have hitherto displayed cavalier \u2028indifference to basic principles of representative democracy in\u2028 the name of the spurious ?party democracy,? respond \u2028to the welcome reaffirmation of universal democratic and constitutional\u2028 first principles by the Supreme Court in this week?s landmark\u2028 judgment.<\/p>\n","protected":false},"excerpt":{"rendered":"

[…]<\/p>\n","protected":false},"author":22,"featured_media":157629,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[3,2186,1,6969,2375],"tags":[],"class_list":["post-157624","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-colombotelegraph","category-featured-news","category-news","category-popular-stories","category-stories"],"yoast_head":"\nCPA Quashes Its Own Objection To Fonseka Appointment - Colombo Telegraph<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.colombotelegraph.com\/index.php\/cpa-quashes-its-own-objection-to-fonseka-appointment\/\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"CPA Quashes Its Own Objection To Fonseka Appointment - 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