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Sunday, May 14, 2017
May 13, 2017, 7:45 pm
ECONOMYNEXT - Sri Lanka’s Court of Appeal unseating Geetha Kumarasinghe could lead to a major shift in the balance of power with the United People’s Freedom Alliance possibly losing at least 11 seats in the 225-member parliament.
The May 3 decision of the court held that Kumarasinghe, a dual citizen of Sri Lanka and Switzerland, was unqualified to be a candidate at the August 2015 parliamentary election and thus she should be removed from parliament.
Apart from removing the 61-year-old former actress-turned-politician from the legislature, the court decision has far more serious repercussions for the entire UPFA list for Galle and Matara districts which returned six and five MPs for the party respectively. The future of those MP’s is now in question.
The 45-page judgement of the two judge bench of justices Vijith P. Malalgoda and P. Padman Surasena, noted that Kumarasinghe was not qualified to be a candidate in line with the 19th amendment to the constitution even though she had declared there was no impediment to her contesting the election.
There had been instances when the entire list of candidates had been rejected because of one person in the list was not qualified to be a candidate.
At the time of the election, the returning officers at Galle and Matara decided that despite objections to Geetha Kumarasinghe and another candidate, Manoj Prasanga Hewagampalage (son of H. G. Sirisena), they were conducting the election under the 1981 Parliamentary Elections Act which had not been updated in line with the 19th amendment to the constitution which bars dual nationals from being candidates.
This issue was settled by the Court of Appeal which held that the 19th amendment applied to the election, thus overturning the decision of the returning officers and unseating Kumarasinghe on the basis she was not qualified to be a candidate at the time the nomination was filed.
The People’s Action for Free and Fair Elections (PAFFREL) confirmed that the court decision could lead to several legal challenges against the entire list of UPFA candidates in Galle and Matara where there were dual citizens.
"There can be legal challenges from several angles," PAFFREL chief Rohana Hettiarachchi said. "This is going to lead to complex legal issues that will eventually have to be settled by the Supreme Court."
Kumarasinghe herself has appealed against the Court of Appeal decision and sought and obtained a stay order on her removal from parliament until the Supreme Court takes up the case on Monday. The apex court is required to rule on a point of law if the 19th amendment applied to Geetha Kumarasinghe at the time she filed the nomination, about two months after the Speaker passed the 19th amendment into law.
The potential loss of 11 UPFA seats in Galle and Matara for the UPFA could drastically change the balance of power in favour of the United National Party (UNP).
The UNP once had its entire list of candidates for the Colombo municipal council in 2006 rejected because there was an underage candidate in it.
The 1981 Parliamentary Elections Act says that the death, withdrawal or disqualification of a CANDIDATE before or after the election will not invalidate the entire list of candidates, but in Kumarasinghe’s case she has now been declared disqualified at the time the nomination and therefore she was never a legitimate "candidate" at the August 2015 election. Therefore, the UPFA list for Galle becomes incomplete and not in compliance with the law.
The Court of Appeal also held that the case was not decided on the basis of the 19th amendment imposing a disqualification on a dual citizen to be a candidate for a seat in parliament.
Had the returning officer accepted the objections to Kumarasinghe’s name on the basis of her being a dual citizenship holder, the entire list should have been rejected. The returning officer has caused an injustice to other parties by accepting a flawed nomination paper of the UPFA.
Since there is no precedent, the courts could, among other things, call for a by-election to the two districts or simply unseat the UPFA candidates and ask the elections commission to allocate seats disregarding the votes of the UPFA. That could give the JVP a few more seats in parliament.
Any change in the Galle and Matara results will impact the national lists that will also further alter the balance of power in parliament where the UNP has 106 and the UPFA 95 and JVP 6. The TNA has 16 and the EPDP and the SLMC have one each.
At the time of nominations, the Matara returning officer noted that anyone could go to court after the election and challenge the inclusion of a dual citizen in the UPFA list.
Both Kumarasinghe and Manoj Hewagampalage were not immediately available for comment. Hewagampalage failed to secure a seat from Matara, but his name appears in the UPFA list and in the event of an elected MP resigning or dying, he could still be an MP.ax