The Supreme Court yesterday rejected leave to proceed with the Writ Petition and four fundamental rights petitions filed challenging the appointment of prominent businessman Dhammika Perera as a Member of Parliament.
The petitions were dismissed by a majority of the Bench comprising Justices Priyantha Jayawardena, Yasantha Kodagoda and Arjuna Obeysekera.
The order was made after considering the basic facts presented for two consecutive days on behalf of the petitioners and the respondents.
The Center for Policy Alternatives (CPA) and its Executive Director Pakiasothy Saravanamuttu had filed the writ petition and a fundamental rights petition.
The other fundamental rights petitions were filed by journalists Roel Raymond, Gamini Viyangoda and Chandra Jayaratne.
Sri Lanka Podujana Peramuna (SLPP), General Secretary Sagara Kariyawasam, the Commissioner of Elections, the Secretary General of Parliament, the Secretary to the President and the Attorney General were named as the respondents in the petitions.The submissions of the petitioners were concluded last Monday.
President’s Counsel Gamini Marapana appearing for the General Secretary of the SLPP Sagara Kariyawasam made submissions yesterday. “This issue has arisen regarding the filling of vacancies in the National List. We all have personal views on the matter but we have to consider the constitutional position. Once the people elect a party, it is the party’s job to select its national list. No one can interfere in it. It is an absolute power of the party, ”he said.
Following that Justice Priyantha Jayawardena raised a question that “Has that been mentioned in the Supreme Court decision regarding Sarath Fonseka’s Parliamentary seat?”
Responding to the query Gamini Marapana PC said that “Yes. It is clearly stated there”.
He further said that “Article 99 (a) of the Constitution stipulates that a vacancy in a Member of Parliament must be filled. Article 55 (3) applies to elected members. But the party secretary has the power to nominate any person for the post of National List MP and no one can blame him for being undemocratic.” He said that the appointment of National List Members of Parliament has been clarified in terms of Article 99 (a). However, when a National List seat becomes vacant, it does not say how it should be filled, he said. He said that the relevant provisions are mentioned in the Parliamentary Elections Act and that nomination papers will be submitted for each election. However, when there is a vacancy, the Commissioner of Elections will not make an appointment from that list and will nominate a person to fill the vacancy, he said. He said that although Basil Rajapaksa’s name was not on the party’s national list, no one questioned about it. He also pointed out that the Supreme Court had earlier ruled in favor of National List MPs, adding that if a decision was taken contrary to these decisions, public confidence in the judiciary would be shattered. He moved from the court to dismiss the petitions after considering all the facts in view of the precedent set by those cases.
President’s Counsel Romesh de Silva appearing for the respondent Dhammika Perera said that “My client has already been appointed as a Member of Parliament. A gazette notification was issued stating that if the court prevents him from taking oaths or holding MP position, it would be interference in Parliament. The Supreme Court has no jurisdiction to do so. If he cannot act in that capacity, only the Speaker of Parliament can decide”.
“In an election, the party is the first to vote. The number of seats is determined by the number of votes received. The relevant provisions are stated in Article 99. Article 99 applies only to elected members. Also, when a National List seat becomes vacant, Article 64 of the Parliamentary Elections Act stipulates that the Secretary of the party has the sovereignty to make such nominations. There he can name any person, even someone from the Opposition. The name will be gazetted by the Commissioner of Elections. That is very clear,” he said.
“There is no logical basis for the argument that the name should be mentioned on a nomination list to be elected to the National List. That is why when Basil Rajapaksa, Saman Ratnapriya and Jayampathy Wickramaratne were elected as National List MPs, no one challenged it. On the other hand, what is the fundamental right that is being violated by this appointment? The petitioners’ right to vote will not be affected. The petitioners are not members of that party.” he added.
“Also, the court is not able to grant the relief sought by the writ petition. The petitioners are seeking the annulment of the relevant gazette notification. However, the court cannot invalidate the gazette notification except that decision. The Court does not have the power to issue an order to the Speaker or the Secretary General of Parliament as requested by the petitioners,” he said. Therefore, Romesh de Silva PC moved from the court that these fundamental rights petitions be dismissed without grant leave to proceed.