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FR Petitions challenge President’s refusal to reconvene Parliament and new elections date

ECONOMYNEXT – A five-judge bench of the Supreme Court, will tomorrow, May 18, examine at least six Fundamental Rights petitions challenging the holding of the Parliamentary General Elections on June 20 and the President’s refusal to reconvene the recently dissolved Parliament.

At these hearings, the Court will decide whether they are to accept the petitions and grant “leave to proceed” with the cases.

Some of the petitions are seeking the reconvening of the recently dissolved Eighth Parliament as a solution for a looming Constitutional Crisis and an invalidation of the date of the election now fixed for June 20.

Monday and Tuesday have been set aside for the hearings.

Chief Justice Jayantha Jayasuriya has appointed Supreme Court Justices Buwaneka Aluwihare, Sisira de Abrew, Priyantha Jayawardena and Vijith K Malalgoda to the bench that will decide whether leave to proceed will be granted. Chief Justice Jayasuriya will preside.

The CJ may appoint a full seven-judge bench for the hearings, if leave to proceed is granted.

The first FR Petition challenging the election date was filed by Attorney Charitha Guneratne who petitioned saying that the fixing of the date was against the Constitution. It argues that according to the law the new Parliament should have been reconvened 3 months after the dissolution which is June 2.

Following that, at least 5 more petitions challenging the date as well as 8 intervening petitions have been filed.

The other FR Petitions have been filed by Journalist Victor Ivan, Paikiasothy Saravanamuttu of the Centre for Policy Alternatives (CPA), politician Patali Champika Ranawaka, the General Secretary of the Samagi Jana Balavegaya Ranjith Madduma Bandara and the Sri Lanka Muslim Congress.

Among the intervening petitions is one filed by Muruttetuwe Ananda Thero.

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In the petition filed by CPA the Attorney General, the Members of the Elections Commission, the Secretary to the President and the Director-General of Health Services have been named as respondents.

In writing the background to the matter, the CPA petition points out that the Elections Commission had informed the President that it will be unable to hold the Parliamentary Elections within the three-month time period due to the COVID 19 issue and requested that the Executive seek “the opinion of the Supreme Court to clarify the law in relation to the next steps in these circumstances.”

However the President had taken the position that the fixing of dates for elections is the responsibility of the Elections Commission and the President does not wish to interfere with the duties and obligations of the Commission and that the question of Reference to the Supreme Court in terms of Article 129 of the Constitution does not arise, the petition states.

The President in his Gazette notification dissolving Parliament also declared that the new Parliament should meet on May 14. According to the law the last date the Parliament has to meet within three-months of dissolution is June 2.

But the EC has now fixed the election for June 20 a date beyond the last legally permitted day for the new Parliament to be convened, the petition states.

The Petitioner is also arguing that due to the pandemic conditions the holding of a free and fair election where all contenders can move without restrictions and conduct a proper election campaign is not possible and priority must be given to deal with the health situation.

The Petitioners state that eligible voters are confronted with the daunting prospect of contracting Covid-19 if they are to meaningfully exercise their franchise in the present context.

The Petition also states that it is imperative that the constitutional institution of Parliament is in place to ensure the smooth functioning of government and to prevent the overreach of the Executive branch of Government.

President Rajapaksa, has however said he will not reconvene Parliament. Co-Cabinet Spokesman Minister Bandula Gunewardena told reporters last week that the “President has been elected by a majority of the people of this country, and this is the decision he has made.”

The CPA petition states that “by his refusal to reconvene Parliament, and thereby allow a lapse of more than three months (03 months) without a sitting Parliament, the President has failed to ensure that the Constitution is respected and upheld, thereby failing in the duty imposed on him by Article 33(1)(a) of the Constitution.”

It adds that this “refusal to exercise his discretion, in order to comply with a mandatory requirement of the constitution is arbitrary and/or irrational and is thus and otherwise an ultra vires exercise and/or improper exercise of his discretion by the President, contrary to the objective requirement of the constitution.”

(Colombo May 17, 2020)