CA stays operation of Gazette on delimitation of local authorities

By S.S. Selvanayagam

The Court of Appeal yesterday (22) issued an Interim Order staying the operation of the Gazette notification dated 17 February issued by the Minister of Provincial Councils and Local Government amending the boundaries, number of members and the constituent parts of wards in respect of the Local Authorities.

The Bench comprising Justices L.T.B. Dehideniya (President/CA), Kumudini Wickramasinghe and A.L.S. Gooneratne also issued notices on the Minister and the Ministry Secretary returnable for 4 December.

Pursuant to certain purported recommendations of the five-member National Delimitation Committee headed by its Chairman Ashoka Peiris, the Minister has by Gazette notification dated 17 February effected the amendments by amending the boundaries, number of members and the constituent parts of wards in respect of the Local Authorities.

The Attorney General on 16 November raised preliminary objection on the maintainability of the Writ Petition seeking to quash the decision of Minister of Provincial Council and Local Government Faiszer Musthapha.

When the Writ Petition challenging the Gazette notification of Musthapha was taken up on 16 November, several parties, namely the UNP, Podujana Peramuna, JVP, PAFFREL, CAFFE, and Eksath Jathika Nidhahas Peramuna indicated their intention to intervene to oppose the original Petition.

They had been directed to file their papers on 20 November 20 to consider whether to allow or not allow their intervention. The Court will consider their intervention on 4 December as well.

Deputy Solicitor General Arjuna Obeysekera appeared for the Respondents. 

The Minister and the Ministry Secretary had raised the objection on the ground of time limit that the petition has been filed after nine months and the petitioners has no locus standi (the right or ability to bring a legal action to a court of law, or to appear in a court), there are no necessary parties in the Petition, namely Election Commission, etc.

Petitioners W.D.G. Wijeratne (Kandy District), T. Sirisena Fernando (Colombo District), R.K.M. Karuatilake Kumara (Kurunegala District), D.K. Ariyaratne (Badulla District), J.K. Rajapaksha Senadheera (Ratnapura District), and P.H. Yohan Dhanushka (Matara District) cited Minister and the Ministry Secretary as Respondents.

Petitioners state the Legislature has sought to amend the manner in which members are elected to Local Authorities and introduce a new electoral system which is a mixed system comprising elements of a single majority ( i.e. first past the post) and proportional systems.

They state the Legislature has added another aspect to the electoral process pertaining to election of members to Local Authorities whereby certain guarantees are imposed on the election of female representatives.

The said status required a comprehensive national delimitation process which was necessary for the demarcation of all local authorities into distinct wards and to determine the number of members that could be elected.

The President by Gazette notification dated 21 August 2015 has published the number of wards, the boundaries, names, number, and alphabetical letter in English assigned to each ward so create on the recommendations of the National Delimitation Committee in respect of the local authorities throughout the island, they state.

 The Minister of Local Government and Provincial Councils is vested with the power to cause an alteration to be made to the boundaries of the wards as published in terms of the Local Authorities Act, they state.

Such alterations are required to be made on the recommendations of a Committee consisting of five persons appointed by the Minister, they state.

Consequent to the publication of the Gazette notification dated 21 August, the Minister had ostensibly appointed a Committee to ostensibly effect the alterations to boundaries of ward, they lament.

Pursuant to certain purported recommendation of the Committee, the Minister has by gazette notification dated 17 February effected purported amendments, they state. They bemoan several wards in Colombo and Kandy Municipal Councils as well as Kotapola, Panduwasnuwara, Haliela and Empilipitiya Pradeshiya Sabhas which were designated as Multi-member wards have been re-designated as wards which only elect one member and other several wards which elected only one member have been re-designated as multi-member wards. They blame the Minister had made alterations to the number of members elected from ward in many local authorities throughout the island.

They contend the Minister is not empowered to cause any alteration to the number of members and the boundaries of wards. They allege the Minister has acted ultra vires (beyond his powers) and without jurisdiction.

They seek the Court to quash the decision of the Minister contained in the Gazette notification dated 17 February and suspend the operation of the said gazette notification until the final determination. N.M. Shaheed appeared for the Petitioners.