A petitioner has requested the Court of Appeal to issue a writ to the Elections Commissioner to suspend the Presidential polls, on the basis that the opinion delivered by the Supreme Court on the legal validity of President Rajapaksa seeking a third term is bad in law.
The petitioner – Nagananda Kodituwakku submits in his application that since the extant President was in office in his second term when the 18th amendment was implemented – the new changes do not have a retrospective effect and thus, is only applicable to those elected into Presidency after the adoption of the constitutional amendment.
Naming the Elections Commissioner, UPFA General Secretary Susil Premjayanth and defacto Chief Justice Mohan Pieris, CJ Shirani Bandaranayake and the Attorney General as the respondents., Kodituwakku has stated in his petition that the EC is obligated to act as required by the law and ought to have rejected the nomination of Mahinda Rajapaksa.
He also points out that the ‘opinion’ delivered by the Supreme Court is not worth, as any verdict delivered by a bench of judges appointed by defacto CJ Mohan Pieris becomes void at its very inception since he is holding on to the position through the power of Executive Presidency.
Kodituwakku has supported his claim on the basis that the CJ’s impeachment became null and void when the Supreme Court delivered on January 1, 2013, that the PSC has no power to investigate allegations made against Chief Justice Shirani Bandaranayake and is therefore unconstitutional. He has further supported his argument by referring to the Court of Appeal verdict that found the PSC unlawful and quashed its findings. Hence he has noted that Peiris’ appointment to the office of the CJ is nullified and the decisions made on his initiative have no legal effect.
He also points to the Supreme Court case SCFR/536/2010 that reveals credible evidence of dishonesty and misconduct of Pieris and argues that President appointing him as CJ has undermined integrity of the judiciary. So, a change of government would mean his removal from the position with no impeachment process as his occupation itself is unlawful, Kodituwakku submits.
Stressing therefore, that Pieris’ opinion is only a private opinion and bears no legal force, he has pointed that the EC has failed to comprehend the facts appropriately and reject the nomination submitted for the incumbent President.
Furthermore, the petitioner has pointed out the President seeking a Supreme Court opinion on the constitutionality of him seeking a third term under Article 129, is outside the jurisdiction of the Courts as the law clearly states the question referred to must be one of ‘public importance’.
Since the question is related to the President’s individual capacity and no one else’s, the constitution does not oblige the Courts to give an opinion and Kodituwakku points out that it ought to have said no. The petition has furthermore noted that Article 129 (1) implies for the necessity of a hearing and does not warrant the Courts to dispense with a hearing altogether.
Instead he states, the Court has followed an ad hoc procedure and denied the citizens the opportunity to express their views.
Therefore, the petitioner has also requested the Courts to:
Issue a mandate to quash the Elections Commissioner’s decision permitting the extant president to contest at the upcoming polls
Issue a writ instructing the Elections Commissioner to reject the nomination tendered for Mahinda Rajapaksa, pointing out the decision of the Elections Commissioner to permit him to contest is unlawful, inapt and an abuse of process and power.
Read the full petition here