Fundamental Rights Petition Filed Against Holding Elections

Election Commissioners

APRIL 30, 2020

After astonishingly decided to hold the Parliamentary Poll on 20-06-2020 by the Election Commission of Sri Lanka, lots of concerned parties mooted that could this decision be implemented as there will be surfeit of court cases which will be filed in the Supreme Court in coming days. Accordingly, one Petition (SC/FR/89/2020) has been instituted by an Attorney-at-Law and former member of the Colombo Municipal Council – Charitha Maithri Gunaratne of No. 118, Barnes Place, Colombo 07.

To this Petition, Election Commission, Mahinda Deshapriya – Chairman of the Election Commission, N. J. Abeysekera, S. Rathnajeevan H. Hoole, P. B. Jayasundare – Secretary to the President, Dr. Anil Jasinghe – Director General of Health Services and Attorney General have named as the Respondents.

The Petitioner has, inter alia, pleaded that, holding the Parliamentary Poll on 20-06-2020 have violated and/or been violating his Fundamental Rights protected under Article 12(1) and 14 of the Constitution.  Further, he has also averred that the election prescribed to have on 20th June, 2020, has violated the Directive Principles of State Policy and Fundamental Duties protected by Article 27 of the Constitution.

The Petitioner alleged that the purported order published by the members of the Election Commission in the Extraordinary Gazette Notification No. 2172/03 dated 20-04-2020 to conduct the Parliamentary Election on 20-06-2020 is, illegal and unconstitutional, unreasonable, ultra vires and has violated the Fundamental Rights protected by the Constitution to the Petitioner, due to number of reasons, viz, inasmuch as the Article 70(5)(a), 70(5)(b) and 70(5)(c) of the Constitution has provided mandatory provision to convene the new Parliament not later than 3-months from the date of proclamation of the dissolution of Parliament, the election date could not surpass 02-06-2020; inasmuch as the section 10(1)(b)(i) of the Parliamentary Election Act No. 01 of the 1981 (as amended) has provided mandatory provisions for the fixing of date for the Poll within a period not less than 5-weeks and not more than 7-weeks from the closing date of the Nomination,  the election date could not have exceeded beyond 13-05-2020; even if the section 24(3) of the Parliamentary Election Act No. 01 of the 1981 (as amended) is abided by, the members of the Election Commission could have proclaimed the new Election date [whilst complying to the rule of not less than 14-days, after the original date (25-04-2020) of Poll] which would fall from 11th of May to 13th of May; but, contrary, the members of the Election Commission have willingly and knowingly violated the very Act which they should resort to.

In this Petition, the Petitioner has pleaded that the Election Commission was compelled publish the Order in the Extraordinary Gazette Notification No. 2172/03 dated 20-04-2020 due to actions and omissions of the 5th Respondent, the Secretary to the President who also represents His Excellency the President. It is the contention of the Petitioner that, as per Article 33(1)(d) of the Constitution, the President on the advice of the Election Commission, has to ensure the proper conditions for the conduct of a free and fair election and referendum. Since Sri Lanka is still being battered by Covid-19 pandemic, and also the President has failed to ensure the proper conditions for the conduct of an election, the President and the 5th Respondent – the Secretary to the President have violated the above Constitutional provisions. This was evident by the fact that, despite the concerns made by the members of the Election Commission in their 2-letters dated 31-04-2020 and 01-04-2020 and the individual letter dated 16-04-2020 sent by Prof. S. Rathnajeevan H, Hoole, the Secretary to the President failed to advice and/or direct the President to take actions under Article 33(1)(d) of the Constitution. Hence, the President himself has violated the constitutional onus which was bestowed upon him.

Nearly 700-Million Rupees are estimated to spend for the Election and that amount will double should Sri Lanka take extra precautions, such as the practices followed by South Korea, to take steps to prevent the infection rate during the election time. It was further mentioned in this Petition that, Government has yet not introduced any stimulus package to the assaulted economy for which may need so much of funds in near future with the unprecedented unemployment which could also hamper the economy soon; whereas, should the election be conducted, the enormous amount of resources which could have used for the regaining of the economy and the welfare of the society will have to be utilized for an Illegal Election.

More importantly, the Petitioner has pleaded that should the Election Commission to continue the election according to the Extraordinary Gazette Notification No.  2172/03 dated 20-04-2020 the life of the people will be at a stake and the Right to Life which is the golden thread of each concept of human right shall have no value.

Read More