SC to hear petition disputing defeated candidates’ entry to P’ment through National List on 18 May

By S.S. Selvanayagam

The Supreme Court yesterday re-fixed for support on 18 May the granting of leave to proceed with the writ petition filed by a public interest litigation alleging that a new clause has been surreptitiously inserted into the 14th Amendment in 1988, permitting defeated candidates to enter Parliament through the National List.

The bench comprised Justices Eva Wanasundera, Anil Gooneratne and Nalin Perera.

Petitioner Naganantha Kodituwakku cited the Elections Commissioner, General Secretaries of the UPFA, UNP, JVP and ITAK, the Attorney General and defeated candidates who were elected as MPs through national lists as respondents.

The petitioner contends this provision of the law could never have been enacted without obtaining a mandate from the people at a referendum as it had clearly infringed upon the people’s sovereign right of franchise.

He points out that the when the Bill was introduced in Parliament, then National Security Minister Lalith Athulathmudali had urged for it to be scrapped because  the said clause permitted party secretaries to nominate rejected candidates and supported only the 14th Amendment that had been approved by the All Party Select Committee.

He recounts the statements made by then Prime Minister R. Premadasa and then Minister Lalith Athulathmudali during the debate on the 14th Amendment Bill in 1988 making it abundantly clear that the said clause was not in the Bill presented and supported by the Prime Minister and Government.

He maintains that the Bill which contained the said clause had never been intended to be enacted either by the Government or agreed upon by the Opposition.

He states that if the Bill, inclusive of the said clause, had been presented to the Supreme Court, the judges would have immediately noted the inconsistency of the Bill with the Provisions of Article 3, which requires a mandate from the people, approving the surrender of their sovereign right of franchise to the party secretaries.

He recollects that then President J.R. Jayewardene had referred a typewritten note (alleging it to be the 14th Amendment) which included the said clause, a provision of which had not been approved by the All Party Select Committee which had drafted the 14th Amendment.

He underlines that the said Clause 8 inserted in Article 99A through the 14th Amendment violates the sovereign rights of the people which includes the power of franchise that cannot be taken away or denied without a mandate from the people at a referendum.

He asserts that the said provision shall not be deemed to amend, repeal or replace the Constitution or any provision thereof or be so interpreted or construed, as it has been enacted in violation of and bypassing the mandatory statutory requirements as set out in Article 82 and 83 of the Constitution.

He says that the Parliament was on 26 June 2015 dissolved by the President, proclaiming the nomination period and fixing a date for the elections to be held on 17 August 2015.

The recognised political parties submitted their lists of persons qualified to be elected through the Nomination List which was gazetted on 13 July 2015 for the information of the voters so that they would know that some of the candidates on the list were likely to be elected through the National List, he states.

The Elections Commissioner on 19 July 2015 declared that the final results with the names of successful candidates elected by the people, he reveals.

Thereafter, further to the notice served by the Elections Commissioner, the Party Secretaries of the UPFA, UNP, JVP and ITAK submitted their respective lists of nominations to fill the seats, if any that could be allocated to them through the National Lists, he states.

The combined list so presented by the political parties did contain the names of several candidates who had been defeated at the elections, whereas their names did not appear in the gazette published by the Elections Commissioner, he laments.

The defeated candidates elected through the national lists are Thilanga Sumathipala, Mahinda Samarasinghe, S.B. Dissanayake, Lakshman Yapa Abeywardena, Angajan Ramanathan, A.M.H.M. Lebbe and Vijith Wijayamuni Zoysa of the UPFA; M.H.M. Navavi of the UNP; Sunil Handunnethi of the JVP and K. Thurairathnasingham and Shanthi Srikandarasa of ITAK.

He is petitioning the court to quash the appointments of the defeated candidates as Members of Parliament elected under the clause purportedly inserted into Article 99A in the 14th Amendment to the Constitution.