- Says free and fair polls cannot be held under present situ
By S.S.Selvanayagam
Samagi Jana Balawegaya General Secretary Ranjith Madduma Bandara has filed a Fundamental Rights petition challenging the June 20 Parliamentary election.
The petition was filed through Dinesh Vidanapathirana citing Attorney General, Elections Commission Chairman Mahinda Deshapriya, its members N. J. Abeysekera and Ratnajeevan Hoole as Respondents.
The petitioner made his Application in the public interest, with the objective of safeguarding the rights and interests of the general public and securing due respect, regard for and adherence to the Rule of Law, the Constitution and with a view to protecting the fundamental rights required to be respected, secured and advanced.
He said that a free and fair election could not be held if the election proceeds in the present circumstances and that campaigning, (including activities such as door to door campaigns, focus-group discussions and mass rallies which give political parties and independent candidates the opportunity to communicate their positions and policies, and the electors the opportunity and ability to make a fully informed decision at the polls) was a vital and indispensable component of free and fair elections and the franchise.
He said that the President’s decision not to rescind the aforementioned Gazette (even on, or after, 20th April 2020) was mala fide, irrational and grossly unreasonable, and amounted to a violation and a continuing violation of the fundamental rights of the citizens.
He said that both a declaration of a State of Emergency under the Public Security Ordinance, or the declaration of a State of Disaster under the Sri Lanka Disaster Management Act need to be approved by Parliament within a specified period of time.
He said the President had not sought to act under either of these two statutes and that unless Parliament is recalled or reconvened, the [1A Respondent] Predident will not be able to exercise these powers when dealing with the Covid-19 outbreak.
He said if the government was to effectively combat the threat of Covid-19 within the framework of the Constitution and the law, Parliament must be convened to adopt lawful measures (including social distancing requirements / lawful restrictions on movement and / or curfews as may be necessary) to combat the pandemic.
He insists that any attempt to exercise the powers of Government without any Parliamentary oversight for an indefinite period of time would amount to a violation of the Constitution, and the constitutional principles, including the Sovereignty of the People; the separation of powers; and the need to have in place ALL three Organs of Government – the Legislature, the Executive, and the Judiciary.
He states on 27th April 2020, Sajith Premadasa (Leader of the Opposition and Leader of Samagi Jana Balawegaya), Ranil Wickremesinghe (Leader of the UNP), R Sampanthan (Leader of TNA), Rishad Bathiudeen (Leader of ACMC), Rauf Hakeem (Leader of SLMC), Patali Champika Ranawaka (Leader of JHU) and Mano Ganesan (Leader of Tamil Progressive Alliance), all being Members of the 8th Parliament, representing the majority of the Members of that Parliament, acting in the national interest and devoid of partisan objectives, wrote to the President guaranteeing responsible cooperation towards ensuring necessary Parliamentary approval for steps necessary to deal with the Covid-19 pandemic, if the dissolution were rescinded and / or Parliament reconvened.
They guaranteed that they would not seek to defeat the Government or obstruct any necessary measures, he state however, the President through his Secretary indicated that he would not rescind the Proclamation of Dissolution and / or summon Parliament.
The President by dissolving Parliament by the dissolution proclamation (P5) in circumstances where the threat posed by the corona virus was known, has acted in a grossly unreasonable and irrational manner, actuated by mala fide political considerations, and thus acted in breach of his constitutional obligation to ensure that the Constitution is respected and upheld, he states.
The President by failing to rescind the dissolution proclamation simultaneously with the imposition of the de facto curfew on 20th March 2020, has acted in a grossly unreasonable and irrational manner, actuated by mala fide political considerations, and thus acted in breach of his constitutional obligation.
He seeks the Court inter alia to declare that failure to ensure the functioning of a duly constituted Parliament amounts to a violation of Article 4 of the Constitution, and an infringement of the fundamental rights of the citizens and amounts to a continuing infringement thereof
He asks for a declaration that the President by dissolving Parliament by the dissolution proclamation has acted in a grossly unreasonable and irrational manner, actuated by mala fide political considerations, and thus acted in breach of his constitutional obligation.
He pleads to Issue an Interim Order restraining the 2nd – 4th Respondents (Election Commission from taking steps towards conducting the election and / or issuing a new date for the conduct of the General Election, prior to the satisfactory containment of the COVID-19 crisis.
