FR petition contests holding of 20 June Parliamentary Polls

By S.S. Selvanayagam

A Fundamental Rights petition contesting the 20 June Parliamentary Election has been filed in the Supreme Court.

The Petitioner is seeking a declaration from the court to invalidate the Extraordinary Gazette notification declaring the 20 June election.

Petitioner Charitha Gunarathne cited the Election Commission, its Chairman Mahinda Deshapriya, its members N.J. Abeysekera and S. Ratnajeevan H. Hoole, as well as Secretary to the President P.B. Jayasundera, Health Services Director General Dr. Anil Jasinghe and the Attorney General as Respondents.

Petitioner seeks, inter alia, an Order from the court quashing a decision taken by the first to fourth Respondents to conduct the General Election on 20 June of this year by publishing the Extraordinary Gazette Notification No. 2172/3 dated 20-04-2020, and other decisions, actions, orders subsequent to the aforesaid Gazette.

Petitioner states the President dissolved the Parliament on 1 March and the notice of the intention of holding the General Election to select the members to the Parliament was declared by publishing the Extraordinary Gazette Notification. The nomination papers for the Election were called by the first Respondent Election Commission to hold the election for those who contest in the poll, on or before 19 March under the Parliamentary Election Act.

Meanwhile, inter alia, the following developments were taken place pertaining to the COVID-19 pandemic in Sri Lanka: 

I. First Sri Lankan COVID-19 patient was found on 10 March 

II. 73 cases were found by 20 March infected by COVID-19 

III. Number of daily cases on 20 March was 13 

IV. By 20 March, total coronavirus cases around globe were 275,734 and the death toll was 11,440 

V. Government imposed the all-island curfew on 20 March 

VI. On 24 March onwards, the Government declared Colombo, Gampaha, Kalutara, Jaffna, Puttalam as high risk areas and issued curfew sine die which operates as at the date of filling of this petition 

VII. During this period of time, all Government and private sector workers were asked to work at home which was operated over the duties of first to fourth Respondents, seventh Respondent and whomever work under them 

By the present day, total number of COVID-19 infected persons are past 700 in Sri Lanka

By apprising the said figures and/or intended possible cases that could report in upcoming days, second to fourth Respondents by publishing the Extraordinary Gazette Notification annulled their previous Extraordinary Gazette Notification and declared that the election cannot be taken on 25 April due to the COVID-19 outbreak prevailing in Sri Lanka.

It was also notified that the Election Commission will appoint a day coming after 14 days from the 30th day of April as the day for the taking of the poll for the election to select members to the Parliament.

In hindsight, as the reported cases who were infected by COVID-19 kept increasing, the Chairman of the Election Commission by his letter dated 31 March addressed to the Secretary to the President requested to inform the President over a looming constitutional crisis which could transpire due to, inter alia, if not the Election Commission commences their work by 20 April, they would not be able to conduct the Election before 2 June. 

He stated that as per the Constitution, the new Parliament has to convene within three months from the date of dissolution of the Parliament which falls on or before 2 June, and as there is no possibility of conducting the election duties with the prevailing pandemic outbreak, it is not realistic that the election can be held before the expiration of the three-month limit.

In addition to the aforesaid letter, the Election Commission sent another letter dated 1 April addressed to the Secretary to the President requesting, inter alia, that it is learnt from those who try to control the COVID-19 pandemic that there is no possibility of averting this disease during the month of April, hence it is not possible that the election can be held before the three-months limit – since the last date of the permitted time would fall on 2 June.

The Election Commission has observed that the new Parliament has to convene within three months from the date of dissolution of the Parliament and which is not possible with the status quo, therefore, the President may be directed to call for a determination from the Supreme Court on this matter.

In response, the Secretary to the President wrote a letter dated 9 April addressed to the Chairman of the Election Commission, making following observations and requested, inter alia, as follows: 

1. If there is no likelihood of conducting the Election on 25 April, the Election Commission has to decide a fresh date which is no less than 14 days of the original date of the poll 

2. Time has not ripen to determine whether the election cannot be conducted before 25 April

3. Deciding the date of the poll is an exclusive duty of the Election Commission to which the President has no intention of interfering with

4. The right to franchise and exercise that right, independently, are the rights enjoyed by the citizen

Hence, it is not warranted to invoke Article 129 of the Constitution to call for a determination from the Supreme Court

 In the meantime, on 20 April, in a website, one of the Election Commission Members Ratnajeevan Hoole objected to holding the election. Petitioner states that this is the stance of one of the members of the Election Commission.

Nevertheless, the members of the Election Commission by publishing the Extraordinary Gazette Notification dated 20-04-2020 issued a purported Order under section 24(3) of the Parliamentary Election Act No. 01 of 1981 (as amended) according to which the Parliamentary Election date was again fixed to fall on 20 June.

Petitioner contends the purported order published by the members of the Election Commission to conduct the Parliamentary Election on 20 June is, inter alia, illegal and unconstitutional, unreasonable, ultra vires and has violated the Fundamental Rights protected by the Constitution.