Business Opinion

SC dismisses petitions against polls date: Elections back on track

By Skandha Gunasekara

The Supreme Court (SC) last week quashed the fundamental rights (FR) petitions challenging the date of the general election by
refusing to grant leave to proceed with their hearings.

These included the seven FR petitions and 13 intervening petitions challenging the election date to hold the parliamentary election (20 June), as assigned by the Election Commission (EC), and the President’s gazette notification dissolving Parliament.

The FR petitions were filed by Dr. Paikiasothy Saravanamuttu of the Centre for Policy Alternatives (CPA), Attorney-at-Law
Charitha Gunaratne, journalist Victor Ivan along with seven others, Ranjith Madduma Bandara of the Samagi Jana Balawegaya
(SJB), and former Parliamentarians Kumara Welgama and Patali Champika Ranawaka.

The petitions were first taken up for hearing on 18 May at the Ceremonial Hall of the SC in an unprecedented move by the court to following health guidelines and ensure social distancing was maintained due to the Covid-19 pandemic.

At the outset of the hearings into the seven FR petitions, the Attorney General (AG) raised preliminary objections on the
sustainability of the petitions.

Subsequently, the counsels appearing for the petitioners began making their submissions, after which the attorneys representing the respondents made their submissions.

Thereafter, the SC gave time for the counsels who appeared on behalf of the 13 intervening petitioners to make their submissions.
All preliminary hearings were concluded by the SC by 1 June.

On Monday (1), the petitions were taken up once again for the 10th consecutive day by the SC bench headed by Chief Justice
Jayantha Jayasuriya and comprising Justices Buwaneka Aluwihare, Sisira de Abrew, Priyantha Jayawardana, and Vijith Malalgoda.

Making final counter submissions before the court adjourned to meet the next day to decide on the fate of the petitions, M.A.
Sumanthiran (PC) told the court that the proclamation made by the President on 2 March dissolving former Parliament ceased to
function and that a new proclamation must be made by the EC to hold the election.

“Now, the President’s proclamation has expired as the new Parliament cannot be convened in the mandatory time limit of three
months. Thus, a fresh proclamation by the President is needed. As the whole proclamation has become invalid, so does the
dissolution of the former Parliament,” Sumanthiran said.

Sumanthiran pointed out that with the expiration of the President’s gazette notification dissolving Parliament and the three-month time period being exceeded, it would be an infringement of the Constitution if the Government held the election.

“According to the gazette notification issued by the President in March, there was no election date and Parliament had gone into
complete sleep mode. At this point, if the Government is trying to hold a general election, it would be a violation of the Constitution because the time bar of three months to convene the new Parliament has already passed in accordance with the Constitution. As such, the President and the Election Commission must work together to conduct a free and fair election,” Sumanthiran said, noting that the EC had failed to act under Section 24 (1) (b) of the Parliamentary Elections Act.

The counsel appearing for the EC, Saliya Peiris (PC), also making counter submissions on that day, said that the Commission was
preparing guidelines to conduct parliamentary polls.

Peiris also urged the bench to take into consideration the fact that the EC had always intended to hold a free and fair election.

“The Election Commission is in the process of preparing guidelines to hold elections and it would be released soon. After issuing
the proclamation, the Election Commission had advised Secretary to the President Dr. P.B. Jayasundara to counsel the President to seek the opinion of the Supreme Court on the holding of elections during the Covid-19 pandemic, as the election could not be held within a period of three months,” Peiris said.

The court adjourned proceedings for that day with the announcement that it would decide on granting leave to proceed with the
hearing on Tuesday (2) afternoon.

On Tuesday, the SC pronounced the ruling around 3.15 p.m. and Chief Justice Jayasuriya informed the court that the initial
objections raised by the respondents regarding the petitions had been rejected by a majority of the five-member judge bench.

He then said the bench had unanimously decided to dismiss the petitions and therefore refused to grant leave to proceed with the
hearings.

Sumanthiran (PC) with Counsel Ermiza Tegal appeared for the petitioner Charitha Gunaratne; Senior Counsel Viran Corea with
Counsel Bhavani Fonseka and Luwie Ganeshathasan appeared for the CPA and Dr. Saravanamuttu; and Geoffrey Alagarathnam
(PC), Pulasthi Hewamana, Lasantha Garusinghe, and Anurangi Singh instructed by Ishara Gunewardane appeared for petitioner
S.C.C. Elankovan.

Romesh de Silva (PC), Ali Sabry (PC), and Counsel Ruwantha Cooray appeared for Secretary to the President Dr. P.B.

Jayasundara while Saliya Peiris (PC) and Counsel V.K. Choksy appeared for the EC.

Attorney-at-Law Ashtika Theivendra appeared for Prof. S. Ratnajeevan Hoole of the EC.

Additional Solicitor General Indika Demuni de Silva alongside Senior Deputy Solicitor General Nerin Pulle appeared for the AG.

Meanwhile, Sanjeeeva Jayawardena (PC) appeared for intervenient petitioner Ven. Muruththettuwe Ananda Thera.