DEVELOPMNT OF CONSTITUTIONAL UNCERTAINTIES
Posted on May 11th, 2017

Sarath Wijesinghe Solicitor-Attorney at law and a former Ambassador

Appellate and Writ Jurisdiction

Court of Appeal has the appellate and writs jurisdiction including quo warrantor” – invoked by the five petitioners successfully challenging Geetha Kumarasinghe (called GK hereinafter)- Member of Parliament elected by the people in the Galle district as their representative. Court of appeal held that she is not duly elected and not eligible to hold office on the grounds that she was holding dual citizenship which is not denunciated before the nominations on 13th July 2015, based on the hurriedly introduced 19th amendment restricting former Presidents to contest more than two terms and holders of dual citizenships to be elected as members of parliament possibly to prevent his brother Gotabaya – the new contender to enter the arena. Hurriedly passed 18th and 19th amendments led to various controversies and complications resulting hardships to the citizen and constitutional uncertainties leading to greater uncertainties and complications, imposing restrictions for periodic and free elections as before. Objections were raised at the nominations against GK which was not accepted by the returning officer for reasons not very convincing. He said the nominations cannot be rejected due to a defect of one candidate when there are numerous precedents including the rejection of the entire list in the Colombo Municipal Council election due to inclusion of one underage candidate in the list when the entire UNP list was rejected. Returning Officer has further stated that there is no provision in law where he could have rejected nominations on the grounds that a candidate was holding dual citizenship which is a very weak argument. The resulting situation in the event it was rejected at the nomination would have been different and prevented the current controversies. Now we are in a maze of legal complications with uncertainties until the Supreme Court determines with long and rigorous exercise with unpleasant and drastic results for the political culture and economy. Today the Election Commission is facing critizsm from all corners on partiality, inefficiency and inert attitudes on implementation of law and procedure. Galle district politicians in both parties are currently busy in political and legal exercises in” making hay when sun shines” by making use of the confused situation, as there are possibilities to disqualifying all UPLF contenders which will have a ripple effect on Fowzie MP and Faizer MP the 11th and 12th in the main list of nominated MPs in the UPLF list, and the UNP politicians are agitating strict compliance of the rules so that there is a possibility for the UNP and the JVP to be benefited over UPLF. It is in an uncertain and confused state.

Nominations challenged and appeal procedure

The petitioners challenged the appointment/election of GK for holding it without authority being a holder of dual citizenship, that she has contested the 2015 parliamentary elections without divulging her immigration states at the time of tendering nominations. Constitution states No person shall be qualified to be elected as a member of Parliament to sit and vote in Parliament if (d) (X11) a citizen of Sri Lanka who is also a citizen of another country” Court of Appeal with the powers vested in articles 137 to 147 has declared that by virtue of the constitution respondent MP is not qualified to be elected as a member of Parliament and thus not entitled to represent the electorate she won with a majority of 63955 votes. Courts held with the petitioners and ordered the Election commission and Secretary General to take appropriate steps according to law and procedure. The Attorney General’s recommendation that the respondent still possess dual citizenship was vital evidence, on the decision of the Court of Appeal against the respondent. Under normal circumstances the next in the list will be named to be the Member of the Parliament to the district and steps will have to be taken by the Commission and the Secretary General accordingly. This matter has transformed to an

extraordinary issue due to the appeal made by the respondent GK to the Supreme Court within the stipulated period of 42 days which is laid down in the Supreme Court rules on appeal procedure resulting stay of the execution of the determination until the decision of the Supreme Court either way. Apparently the lawyers of the respondent have informed the authorities accordingly to stall the proceedings forthwith. Conflicting news reports are viral that the Attorney General has advised/given opinion to the Secretary General of the Parliament to appoint the next in line comments to the media by different groups with different views due to uncertainty of the law and procedure and conflicting and contrary information on the same issue. Everything will depend on how the SG and Election Commission will act or react. Whatever happens the resulting position will be still complicated, if the position was taken and accepted that the respondent was not qualified to be nominated at the time the nominations are accepted and whether the entire party list will be null and void as has taken place in previous occasions. According to media both parties have met the Speaker and the Secretary General. GK has declared the intention to lodge an appeal and the appellants to expedite the execution of the decision. Speed in which the steps taken have by the SG and the AG in the fast tract within the appealable period has raised eyebrows of impartial political observers and professionals waiting for peace and peaceful transformation of events.

Previous Precedents

When late Ratnasiri Wickramanayaka fielded a list with an underage candidate the entire list was rejected in local government elections in Horana. Now though late if the UPLF list fielded is proved to be illegal at the time of nominations with the possible result of disqualifying the entire list with uncertain remedies the implications will be disastrous. Election for the entire Galle district will be an option if and when the jurisdiction is invoked by a citizen over a FR case or an election petition challenging the nomination of the respondent and the steps taken by the officers and authority thereafter. When Pilapitiya – former MP in UNP government then was unseated on an election petition he was appointed as a nominated MP by JRJ but the Supreme did not allow him function as a member of the Parliament. 19th Amendment merely states that a dual citizen is not eligible to contest for parliamentary membership but silent on appointed members of Parliament. Leader of Pivituru Hela Urumaya has made a public announcement that there are already 8 Members of Parliament with dual citizenships and official inquiries have been made under the new right to information act to verify the truth. In that event the situation will be still complicated requiring clarifications from the Supreme Court by way of writs, applications or FR applications by citizens with drastic changes in the chemistry of the Parliament.

Complex nature of the issues

Due to the complex nature of the issue in the absence of precedents the Supreme Court will have to give rulings for each and every issues starting with the appeal lodged by GK. Now that the appeal of the respondent and the letters from the Secretary General is before the Election Commission, the Commission is bound to give a quasi-judicial decision on the matter based on law practice and practices in the Supreme Court and Court Appeal. It is the practice/convention that has become part of semi legal binding that when an appeal is lodged the proceedings are stalled and no steps will be taken for execution. Most information is based on media and the fact remains that the Commission is independent to use the discretion obviously contested vigorously by both parties. The practice and the convention that once the appeal is lodged the proceedings will be stalled is a crystalized convention court practice. It is a moot issue how the Election Commission will act/react to this issue and whether proceedings will be stayed until the determination of the Supreme Court Decision.

Constitutional Uncertainties

Constitutional uncertainties are brewing and developing in a rapid phase due to hurriedly prepared legislation in haste and applicability based on personal and political agendas with ulterior motives with no broad national programs or ideologies. Now it has reached the melting point resulting uncertain and complicated legal and

political complications misbalancing the political outlook and the chemistry of the Nation. Currently UNP has 106, UPLF 95, JVP 6, TNA 16, EPDP 1 and SLMC1 with the possibility of UPLF losing all seats with advantages to UNP and JVP or a by election for the entire Galle district depending on the decision of the Supreme Court on GK’s case and connected issues. This shows how outsiders are benefited when the household is fighting with each other without resolving matters within. In 1965 George Kotalawala was appointed MP by the courts considering the votes casted and accordingly what is the justification of the SLFP voters voted with great aspirations and ambitions for their future? Whilst UNP is busy in claiming their portion in the prey made available by GK before the arena. In the absence of any precedents the resolution will be still difficult but these will be lessons in the constitutional making process on the table which is also a hurriedly dratted document without the participation and involvement of the entire nation. (Author who takes responsibility for the contents in the article could be reached on [email protected]( 0777880166)

6 Responses to “DEVELOPMNT OF CONSTITUTIONAL UNCERTAINTIES”

  1. Ananda-USA Says:

    Besides putting the continued participation of 8 other dual-citizen MP’s in Parliament (party affiliations as yet not known to us) in jeopardy, the 19th Amendment has two even more destructive effects:

    It rules out MR as a candidate because of the 2 term limitation, and Gota is ruled out as a candidate because he is a dual-citizen, eliminating the two candidates most acceptable to the Patriotic Forces from running for the Presidency.

    It must be recalled that many UPFA MP’s voted to pass the 19A. We are our own worst enemies!

    Who are left as ACCEPTABLE and POLITICALLY VIABLE PATRIOTIC candidates: Wimal Weerawansa, Rear Admiral Sarath Weerasekara?

    Now we know why the Yamapalanaya is trying so hard to DEFAME and even CONVICT the leading patriotic politicians!

  2. Dilrook Says:

    Indeed we are in a constitutional mess. All amendments to the constitution were passed in a hurry. Unlike British rulers, local ruler never allowed citizens’ inputs into the two constitutions. The spirit of 19A is disallow any MP with dual citizenship, elected or appointed. Otherwise it is discriminatory!

    Entire Galle District UPFA nominations list must be rejected as per the law. Whether 19A is good or bad is a different discussion. 19A (as 13A) is law, like it or not. It must be implemented. All other nominations that include dual citizens must be rejected.

    I for one support the Court of Appeal decision in a country politicians are above the law. It is time politicians started to pay heed to the law (at least the Constitution) or face the consequences. Sirisena must not intervene just because most affected MPs are with him. What will happen is Sirisena will get his men saved and use it to rally support within the party for him.

    However, there is no bar on president.

  3. Lorenzo Says:

    It does NOT matter SLFP or JO losing.

    The problem is UNP is gaining.

    Didn’t anyone CHECK these things BEFORE nominations?

  4. ranjit Says:

    The problem is with our party politics and the candidates who were sent to parliament by our Sri lankan voters who without knowing exactly whom to send, who is qualified and have brains to understand exactly what their Constitution needs etc.These brainless unqualified thives (not all but some) without study or understand just raise their hands for any bill just in sake of passing. No one think of the country just help to pass the bills to satisfy their party leaders. It’s a jokers paradise with this set of idiotic individuals who rule this country. The government should take the blame for this blunder and the election commisioner should resign or be sacked for not doing his job professionally. This government is in a mess from the day one. They started with revenge in their hearts. For two and a half years their job was going after Mahinda Rajapaksa and his family and harassing former members in his cabinet, government servants and the war heroes etc. We don’t know what the future is going to be as we see and hear things day by day. Murder, drugs and robberies are the talk of the town daily. Democracy and freedom nowhere to be seen in this once free and prosperous country. People who loves this nation must stand up without any delay to save Motherland.

  5. Christie Says:

    A separate constitution for an Indian Colony. Jai Hind Emperor Modi.

  6. Fran Diaz Says:

    The ILLEGAL parts (INDIA imposed 13-A & later the 19-A too), of the Sri Lankan Constitution reflects the dilemma Sri Lanka is in.
    The 13-A is definitely ILLEGAL, & the hurriedly passed 19-A passed to suit foreign powers, must both be removed, now that the war with the terrorist group, the LTTE, is over.

    What Lanka needs is PATRIOTISM.

    It is pointless for Tamils to fight their Tamil CASTE wars in Lanka. The main menu on Tamil CASTE is run in the Tamil Nadu, INDIA. It has run there for over 3,000 yrs and CASTE stated in the birth certificates and the Census done on a CASTE base. Lanka does not state CASTE on birth certs & the Census is not done on a CASTE base.

    Repeat : What Lanka needs is PATRIOTISM.
    Lanka needs a Constititution that promotes PATRIOTISM.

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