Page 1
THE RIGHT TO VC RELATING TO ELE
Centre for Pol

DTE AND THE LAW ECTION PETITIONS
+ X
icy Alternatives

Page 2


Page 3
The Right to vote ar
to Electior
Conduc The Centre for Po.
· 26th, Febru
9 a.m. to 1.
Sapsri Aud
Coloml

and the Law Relating
Petitions
lity ternatives
ted by licy Alternatives
ary 2000 .00 p.m.
itorium bo 7

Page 4
Centre for Poli
(C
Material from this publica
acknowledgemen
..:
ISBN 955-8037-22-2
For further information contact: Centre for Policy Alternatives (C 32/3, Flower Road Colombo 07.
Tel: 565304 / 565306/074-71 Fax: 074-714460 E-mail: cpa@sri.lanka.net
Website: http:/www.cpalanka.org
November 2000
* riteti - !
Edited by Sundari de Alwis Editorial Assistance by Senani I
Nadeesha Cover Designed by Uditha Se
**
TE"

cy Alternatives
PA)
.tion may be used with due t given to the CPA
'PA)
4461
Dayarathne and LJayasinghe enarathna

Page 5
FOREV
This volume comprises the transcript and Right to vote and the Law relating to Ele February 2000. In addition a selection of cles on the subject have been annexed top overview of the issues. CPA hopes that i raising awareness of this important aspect ing need for reform in this area.
The electoral process has received a lot o mainly because the political calendar has commencing with the North Western :Pr January 1999, a series of provincial electic Presidential and General elections in Dec tively. In addition to the holding of electio by the manner in which they were conduct tions of violence and malpractice. These available mechanisms for accountability a
The issues covered in this publication rar litigation to further democratic governance and its application as well as the bad pra on which the law is silent or to which the issues identified provide a profile of the i culled from the experience of elections o urgent need for electoral reform must be: current reality. It should not be seen, mer of reforms for better governance in Sri La
The electoral process is the basic mechani ing democracy. Therefore, the strength ar from the registration of voters to the decl. afforded to those who believe that they ha pivotal importance. This is reinforced in of nation and state, of the structure and di which have to be addressed, debated and The very legitimacy of authoritative politi

VORD
VORD . . . . . . ::::::::::it.)
presentations made at a seminar on the ction Petitions organized by CPA on 26 important reports, judgements and arti-rovide the reader with a comprehensive this publication will contribute towards of democratic governance and the press
of public attention in the last two years, been dominated by a series of elections ovincial Council Election at the end of ons in April and June of that year and the cember 1999 and October 2000 respec-ns, public attention has been heightened sed, in particular the documented allegae in turn have focused attention on the and redress. . . . . . . . . - . - .... . . nge from the recourse to public interest 2, the law pertaining to election petitions ctices and procedures that are followed law is not or only weakly, applied. The need for electoral reform in Sri Lanka, ver the last decade. In this respect, the recognised as being underpinned by the ely, as yet another item on the checklist inka.
. . . . . . . . . sm for: choice and change in a functionid integrity of the process in operation - aration of results to the legal remedies ve been aggrieved by the process - is of Sri Lanka,by the fundamental questions stribution of power throughout society, resolved through the electoral process. cal and executive action is crucially de

Page 6
pendent upon the freeness and fairne viability and integrity.
*.Whilst the primary focus of this publ *électoral process, it must be stresse
directly informed by the workings o challenge it attempts to meet is that and determinate relationship with th and of shaping it as a viable framew
This brings to the fore the issue of th "prevailing political culture that deter
life and meaning. As to whether * correlation or indeed as to whether it
nable to an easy and generalised an
Yet the very existence of vital re denied and the need therefore för a s tive governance, needs to be acknov and analysis of civil society litigation to the responsibility and contributio society to facilitate this...**
Some decades ago, Sri Lanka was racy in the developing world. The
process was one of the factors cited : nofónger the case and a clear refle ** reform of the electoral process. Whi 2il enough, it is nevertheless necessary
CPA hopes that there will be constr ** this issue leading to reform of the la
it. CPA' hopes too that this public attaining these objectives and impro
*******
• Dr. Paikiasothy Saravanamuttu
* Executive Director . . Centre For Policy Alternatives (CP
: '*

ss of the electoral process, its strength,
ication is on the legal dimensions of the 1 that this focus is fashioned from and f the process and current realities. The of bringing the laws into a more direct he latter, of locating the law in context rork for good practice.
le relationship between the law and the
mines its implementation - that gives it he relationship is one of causality or t is circular and reinforcing, is not ameswer.
lationship between the two cannot be ymbiotic one to further good and effecwledged. The inclusion of judgements. in this area is included to draw attention n that can and must be made from civil
hailed as a text book model of democ
strength and integrity of the electoral - in this favourable assessment. This is ction of this is the compelling need for ilst a change of the law alone will not be
uctive public debate and discussion on w and the political culture that animates ation will be an useful contribution to
ving governance in Sri Lanka.
A)

Page 7
CON
1.
Introduction
2. Presentation of the Background Pape
3.
Background Paper - The Right to Vo
·:s :
Introduction Background Electoral Machinery
Commissioner of Elec The Method of Appo as per the UNP Recor The Government Prof Draft Constitution, A
Elections Commission
Election Law Enforcement P
Inadequacy of Election Law:
S. s. <
Law Relating to Election Pet
Registration of Electors
Procedure of Enumera Alleged Defects in th
viii
Citizenship Based on Affidav
* *
The President's Law Making Judicial Recognition of the Ri to the Judgement in Karunat. Commissioner of Elections a
Provincial Councils Elections
xii
Misuse of State Resources f
xiii
17th Amendment to the Consı
xiv
Conclusion

TENTS
er on Electoral laws
te: it's Impact on Election Laws in Sri Lankaby Rohan Edrisinha and Sundari de Alwis
ctions intment and Composition of the Commission mmendations posals for Constitutional Reform, October 1997
ugust 2000
rocedures
itions
ation e System
vit
- Power in Respect of Elections
ght to vote as a Fundamental Right (Reference ilake and Another v Dayananda Dissanayake, end Others)
=(Special Provisions) Bill
or Election Purposes
titution

Page 8
Xiv
Conclusion 4. Main Presentation – The Law Relatin
in Sirimavo Bandaranaike v Ranasin
5. Panel Presentation
i.
Presentation by Dr. Jayatissa ii. Presentation by Mr. Sunil Ba
6. Comment on Mr. Goonesekere’s
7. General Discussion
ANNXEXURES
Annex I Agenda
Annex II Data - Final Report on Electi
Election – 21" December 1999
Annex III
Judgement in Sirimavo E
Annex IV
Seminar Handouts
:S
i
Imminent Infringement of elect for Moot Point, Legal Review Fundamental Rights in the Pu
Moot Point, Legal Review 19 Judgement in Karunathilaku Judgement in Janatha Vinn.
General Judgement in Rohan Edrisin Section 13 and 14 of the Elec Section 88 – 95 of the Presidi
V..
vi.
vii.
Annex V
List of Participan

; to Elections and Comment on the Judgement ghe Premadasa - by R.K.W. Goonesekere
de Costa stian
Presentation
on Related Violence: Presidential
Bandaranaike v Ranasinghe Premadasa
toral rights, an article by Radhika Coomaraswamy - 1999. Iblic Interest, an article by Ruana Rajepakse for
99.
and Deshapriya v. Commissioner of Elections Fakthi Peramuna and others v. the Attorney
ha and others v. Commissioner of Elections tions (Special Provisions) Act no 35 of 1988 ential Elections Act

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INTRODU
A seminar on ‘The Right to vote and th organised by the Centre for Policy Alterna 2000 at the Sapsri Auditorium, Colombo 7.
The objective of this seminar was to focus the response of the judiciary to presidenti
ments of the Appellate Courts of Sri Lan election petitions, including the Supr Bandaranaike v. Ranasinghe Premadas
The seminar commenced with the present toral Laws' co-authored by Rohan Edrisir lowed by a presentation by Mr. R.K.W. G tions and a comment on the election pet Ranasinghe Premadasa. A panel discussi processes in which Dr. Jayatissa de Cost panellists. An open discussion followed the
In his introduction, Dr. P. Saravanamuttu, importance of the electoral process and the process from its primary stages to its co petitions and related laws. Dr. Saravan diverse elections- related cases that look a the conducting of elections and a myria infringement of the right to vote, and stres legal regime plays in ensuring free and fair of whether the strengthening of a legal regi fosters free and fair elections, and expr discussion would address the gamut of ele changes in laws and procedures and there free and fair elections.

ICTION
e Law Relating to Election Petitions itives (CPA) was held on 26th February
on the law relating to election petitions, al election petitions and recent judgeika in relation to the right to vote and reme Court judgement in Sirimavo
cation of a background paper on ‘Eleciha and Sundari de Alwis of CPA, foloonesekere on the law relating to elecition case Sirimavo Bandaranaike vs. ɔn followed on electoral laws and legal i and Mr. Sunil Bastian participated as e panel presentation.
Executive Director, CPA, spoke of the e legal regime that is concerned with the onclusion, and the process of election amuttu traced the issues covered by t the inception of the electoral process, d related issues such as the imminent ssed the importance of the role that the - elections. He raised the pertinent issue
me would lead to a political culture that ressed the hope that the seminar and ection-related issues that would lead to by foster an environment conducive to

Page 10
See Anne.
PRESENTATION OF TH
ON ELECT
By Roha
The paper focuses on two broad issue preme Court on the right to vote and th laws of the country. The thrust of the pa opments in Sri Lanka in that the right to from the Constitution, however, there ha the courts have adopted technical, nonpreting laws relating to election petition
The paper looks at the electoral mach Elections Commissioner and election la includes a detailed section on the inade tions (Special Provisions) Act No. 35 o
mentary Elections Act, Provincial Coun several election petition cases.
The full text of the presentation is as fo (For the purpose of this publication this

x 1 - Agenda
IE BACKGROUND PAPER FORAL LAWS
n Edrisinha
Ss, namely, the recent decisions of the Sue impact of these decisions on the election aper is that there have been positive develvote has been recognized as a right arising ve also been negative developments where -creative and non activist attitudes in interas.
hinery and the roles and functions of the Iw enforcement procedures. The paper also Equacies of election laws and cites the Elecof 1988, Presidential Elections Act, Parliacils Elections (Special Provisions) Bill and
=llows:
paper has been updated since the seminar)

Page 11
THE RIGHT ITS IMPACT ON ELECTI
By Rohan Edrisinha
Centre for Polic
Introduction
The preservation of the integrity of the el as one of the major challenges to dem particular, free and fair elections appea than the rule. This paper focuses on tw
1. Recent decisions of the Supreme Cou 2. The impact of these decisions on the
The right to vote is not explicitly provide fundamental rights. However, there are the fact that voting has to be free, equa not surprising that in several recent dec right to vote was implicit in the freedor has in a series of decisions, issued direc right to vote, and the integrity of the elect
ment.
However, this development is paralleled t that is being adopted by the courts wher are the more familiar of the types of liti Indeed, this overly rigid approach has ma
alleging a breach of the election laws or regularities to succeed in these cases. Ir case Sirimavo Bandaranaike v Ranas De Silva' which challenged the electio dential election of 1988, the interpretatio clarified and laid down by the Supreme C
'(1992) 2 Sri L.R. Page 1.

E TO VOTE: ON LAWS IN SRI LANKA
and Sundari de Alwis cy Alternatives
ectoral process in Sri Lanka has emerged ocracy in recent years. Since 1982 in ar to have become the exception rather
o broad issues:
art on the right to vote. -
election laws of the country.
d for in the Constitution in the chapter on several references to the franchise, and I and by secret ballot. It was therefore isions, the Supreme Court held that the n of speech and expression. The court ctions which have sought to uphold the Coral process. This is a positive develop
py a more restrained, legalistic approach a determining election petitions, which gation relating to the electoral process. de it virtually impossible for a Petitioner - the commission of malpractices or irn the much publicised election petition inghe Premadasa and Chandananda n of President Premadasa at the presin of the law and the principles of law as Court has made it extremely difficult for

Page 12
elections to be successfully challenged.' needs to be questioned, especially in vie vote and the interventions of the Supre particularly in the exercise of its fundaj 17 and 126 of the Constitution.
In many jurisdictions, the judiciary has a the franchise, the courts have a special r the democratic process. In the United St on the pros and cons of judicial activ disagree on the desirable extent of ju interpretation of the Bill of Rights is co judicial activism have defended a cre dealing with the right to vote.
In Democracy and Distrust: A Th Ely defends judicial activism protectin American constitution- representation /p role of the judiciary is to ensure the pr the substantive decisions made thr process-based review is consistent w review, which is concerned with outcome he calls for "a participation-oriented, judicial review." Elections, ensuring free guaranteeing minority rights of participi channels of political change clear and justified in asserting their authority or e those who possess political power, the remain in and those without power rema Executive branches of government, whi therefore cannot be entrusted with th democratic process. Thus, the prot considered a vital responsibility of the ji
The decisions of the Supreme Court of viewed as being consistent with the however, whether the decision in B approach of the court when deciding election petition cases, are consistent w

The desirability and logic of this position
w of the recent affirmation of the right to eme Court in the area of the franchise, nental rights jurisdiction under Articles
acknowledged that in matters relating to esponsibility to guarantee the sanctity of ates for example, there is a lively debate ism and restraint. Judges and scholars dicial activism, particularly where the ncerned. But in general, even critics of ative approach to interpretation when
eory of Judicial Review, John Hart g a general theme or basic value of the articipation. Ely's thesis is that the proper ocess of democracy, and not to review "ough that process. Ely argues that ith democracy, while substance-based es, is incompatible with democracy. Thus, representation-reinforcing approach to speech, particularly in the political sphere, ation in the political process, keeping the ppen, etc, are areas where the courts are ven engaging in activism. Ely states that fins” are prone to ensuring that the “ins" ain in that situation. The Legislative and ch are invariably controlled by the “ins”, e duty to ensuring, the fairness of the ection of the democratic process is udiciary.
f Sri Lanka on the right to vote may be e Ely approach. The question arises andaranaike v Premadasa, and the
other cases on the franchise, notably with the Ely approach.

Page 13
Background
At the time of independence in 1948, Sr. Asia's brightest prospects. This was not because it had many firsts to its credit in t colonial rule. Many of these were in the re. Franchise was introduced in 1931 and t immediate impact on the social and eco period 1931-46 saw the establishment o rights of the weaker sections of the co grammes, development projects in rural a benefiting workers including women.
From 1931 until the early 1980s, Sri La governments through regular, free and fai Jaffna District Development Council elec endum in 1982, the credibility and the leg under threat. Ruling parties have sougł pressures have undermined the authority, tutions created to ensure free and fair ele
The situation in Sri Lanka, therefore, is s try with a long tradition of democratic go passes both an intractable and bloody et integrity of its democratic process and go
The North-Western Provincial Council ( 1999 was one of the worst elections that t ment spokespersons have attempted, uno tem for the North-Western Provincial Co kind of proportional representation adopte violence and intimidation. Admittedly, t. not without its faults. This was in fact a with both parties pledging to change the sy to the German system. Another interestin debate is the issue of the freedom of cor the related issue of the relationship betw and the People. After local government el by violence and intimidation, many politi campaigned for measures to strengthen t
9

: : : : : : :
. . . . . . :: i Lanka (Ceylon) was considered one of only due to its strong economy, but also he years leading to freedom from British alm of civil and political rights. Universal his empowerment of the people had an nomic development of the country. The f numerous programmes to promote the mmunity. These included welfare proreas, rural credit schemes and legislation
nka had a record of peaceful change of ir elections. Thereafter however, with the ction in 1981 and the controversial Referjitimacy of the electoral process has been it to win elections at any cost. Political , independence, and efficacy of the instiections.
omewhat dismal. It is tragic that a counvernance today faces a crisis that encomchnic conflict and also an erosion of the overnance.
Wayamba) election held on 25th January chis country has ever witnessed. Governconvincingly, to blame the electoral sysuncil (Wayamba) fiasco. The particular ed in Sri Lanka, they argue, contributes to he proportional representation system is n issue at the general elections of 1994, ustem to a mixed or hybrid system similar ng issue which has surfaced in the reforin nscience of Members of Parliament and seen members, their parties, Parliament ections in 1997, which were also marred cal parties and civil society groups have he independence and power attached to

Page 14
the institutions responsible for the condu have engaged in the monitoring of i
malpractice. In a landmark judgeme Supreme Court intervened to protect scheduled elections were postponed by
The electoral process could be conside considered to be the most effective people's political wishes and expectati system to serve its purpose, the electo and institutional structure to conduc pressure. It should promote the politic principles of constitutionalism; it shoule legislature; it should recognise the free legislature; and above all, it should be fi some of the constraints faced by the intends to focus on the law relating to judiciary to election petitions and rece vote.
Electoral Machinery
Article 93 of the Constitution of the Dei (1978) states that ‘The voting for
Republic and of the members of Pur! be free equal and hy secret ballot'.
Election laws mean little in the absen competent election authority. The elect apply the electoral law fairly, to use sai deter violations of the law, and to com and to challenge any attempts to subve
The Sri Lankan electoral system h
widespread corruption and malpractic fashioned to ensure standards of freed process has deteriorated to the exter electoral system has been endangered.

ict of elections. Many civil society groups he instances of electoral violence and nt delivered on 27th January 1999, the the rights of voters in provinces where - emergency regulation.
ered the cornerstone of democracy. It is
mechanism for the fulfilment of the ons. However, in order for an electoral aral system should provide a mechanism ct polls with no interference or undue al will of the people and the values and a facilitate the effective functioning of the dom of conscience of the members of the ree and fair. This paper seeks to highlight electoral system of Sri Lanka. It also o election petitions, the response of the nt judgements in relation to the right to
mocratic Socialist Republic of Sri Lanka the election of the President of the iament and at every Referendum shall
ce of an independent, non-partisan and ion authority must be willing and able to ictions (and the power of persuasion) to petently administer the electoral process rt that process.
as, in recent years, been tainted by e. Though the election laws have been lom, fairness and legality, the electoral it that voter confidence in the whole .

Page 15
Commissioner of Elections
Since 1947 the Department of Electior maintaining the neutrality of the election
Article 103 of the Constitution provides foi Elections. According to this section, tł appointed by the President and would h provision gives rise to a valid fear of partial of the Commissioner.
Article 104 of the Constitution states : exercise, perform or discharge all such conferred or imposed on or vested in hin relating to elections to the office of Pres of Parliament and to Referenda, or by a
The Commissioner of Elections is responsi control of the preparation of accurate electo of elections.
The Election Commissioner has been sub from political parties and government off electoral process.
In Karunatilake and another v. Dayan Elections and Others” (this decision is dis paper), the Supreme Court highlighted the p For example, on the issue of whether the Co emergency regulation suspending election. remember that the Constitution assures independence, so that he may fearlessly i regard to all aspects of elections -even, if n proceedings in order to obtain judicial order the powers and duties of the Commissione enhance the stature of the role of the Com
The United National Party (UNP), in its Parliament, made proposals for an indepen
? (1999) I Sri LR. Pg. 157.
Ibid at 182.

as has been entrusted with the task of management mechanism.
r the appointment of the Commissioner of ne Commissioner of Elections shall be
old office during good behaviour. This lity and a lack of independence on the part
The Commissioner of Elections shall powers, duties or functions as may be n by the law for the time being in force sident of the Republic and of Members any other written lavi.
ble for the superintendence, direction and oral registers annually and for the conduct
jected to considerable political pressure Ficials who seeking to interfere with the
anda Dissanayake, Commissioner of cussed in detail in the second part of this powers of the Commissioner of Elections. ommissioner should have submitted to the , the Court observed “...it is necessary to
him (the Commissioner of Elections) nsist on due compliance with the law in ecessary, by instituting appropriate legal s...." The observations with regard to er in this particular decision did much to
missioner of Elections.
- role as the main Opposition Party in
dent elections mechanism. (i.
. -.
.......

Page 16
The UNP recommended that an Electio stitution. They also suggested that the of holding all Elections and Referenda ir sions vesting these functions in a single
The UNP recommendations go on Constitution should lay down the mann tenure of the Commissioners and their
The Method of Appointment and per the UNP Recommendations;
1. The Commission should consist of 1
Government with the concurrence of of appointment will make the representative. *** The members of the Commission distinguished themselves in the le
service or academic careers. 3. The chairman of the Commission
Government from amongst the five ( as aforesaid. The members of the years, and shall not be removed fror and on like grounds as Judges of the
be determined by Parliament and ci 4. Their independence should be prote
to those that protect the independer
The Government Proposals for Constitu
These proposals (also known as the C the institution of an Elections Commis. from the Opposition proposals in that Elections Commission, also makes pro Elections, who shall function as the Cha there shall be such other number of Commissioners, 4
The October 1997 Proposals also recor Commission should be appointed by t 4 Government Proposals for Constitutional I

ns Commission be established by the ConConstitution should vest the responsibility this Commission, in lieu of existing proviofficer appointed by the President alone.
to state that a separate chapter in the er of appointment of this Commission, the powers and functions.
Composition of the Commission as
Five (5) members appointed by the Head of E the Leader of the Opposition. This method
·Commission both independent and
should be persons of integrity who have egal or other professions, administrative
shall be nominated by the Head of the 5) members of the Commission appointed Commission shall hold office for six (6) n office except by Parliament in a manner Superior Courts. Their remuneration will annot be reduced whilst they hold office. ected by constitutional safeguards similar nce of the judiciary.
ational Reforms, October 1997
October 1997 proposals) also recommend sion, but the government proposals differ the Government, whilst introducing the vision for the office of Commissioner of irman of the Commission, and further, that Deputy Commissioners and Assistant
mmend that the members of the Elections ne President, and that the President may Reform, October 1997. Article 111.

Page 17
remove a member of the Elections Com recommendation made by the Chairman Commission other than the Chairman ma addressed to the President.
Comments - In the October 1997 proposa Commission appears to be defeated as tł factory degree of independence and imp The degree of political interference in tt system would be the same as that unde provisions on franchise and elections in tł a greater degree of independence to the r
Draft Constitution - August 2000
The Peoples Alliance Government in its A Act to Repeal and Replace the Constituti of Sri Lanka’ provided for an Elections C the most positive steps taken to ensure th
According to Article 110(1)(a) of the Dra sion will consist of five persons who have tive professions or in the fields of admini appointed by the President on the recomm
Article 110 (1)(b) states that until the C
members of the Elections Commission s that two members so appointed shall be ne in Parliament.
Article 110(5) provides for the removal o fice, Members of the Elections Commis five years from the date of appointm office by writing addressed to the Pres made after an address of Parliament sup of Members of Parliament (including t to the President on grounds of proved 110(3) ], or by vacation of office under

amission other than the Chairman on a 1. It further states that a member of the ay resign from the Commission by letter
Is, the purpose of instituting an Elections nese proposals do not guarantee a satispartiality for the Elections Commission. ne election process under this proposed er the 1978 Constitution. However, the ne August 2000 Draft Constitution allow
members of the Election Commission.
Lugust 2000, Draft Constitution titled ‘An on of the Democratic Socialist Republic Commission. These provisions are by far me independence of the electoral system.
aft Constitution, the Elections Commisdistinguished themselves in their respecstration or higher education who will be nendation of the Constitutional Council.
onstitutional Council is constituted, the hall be appointed by the President, and ominees of the Leader of the Opposition
f members of the Commission from ofssion shall hold office for a period of ent unless the member resigns from ident or by an order of the President ported by a majority of the total number hose not present) has been presented = misbehaviour or incapacity [Article - Article 110(4) of the Act.

Page 18
According to Article 110(7) a memhe. salary as determined by Parliament, of Sri Lanka and shall not be dimin
member.
Elections Commission
Ideally, the Elections Commission shoul isters, conduct all elections, control al (including the police and military deploy elections complaints from candidates o monitor the adjudication of election viol
A very positive feature of the August 2 significant powers which will be enjoyed sion. It will be given powers to work wit subsection (3) and (4) provides that the National Police Commissioner of the fac ers required by the Commission for the tional Police Commissioner shall make. facilities and police officers asked for b tion (5) the Elections Commission may d them in such manner as iş calculated to election. ... ..
Election Law Enforcement Procedu
The UNP proposals to the Select Comr on the "... requirement that existing le in the area of election law enforcemei ally a period of about eight or ten w the Law governing the conduct of ele forced. Detection and punishment or fore, necessary to provide additional be quick judicial disposal of such trui however with the rule of law. It is als for preventive action”.
Under the present election laws, the Elect tions on his powers. A main concern ist

r of the Commission shall be paid such and charged on the Consolidated Fund Lished during the term of office of the
d be empowered to prepare Electoral Reg1 state agents connected to the elections ed in connection with an election), receive r parties and take appropriate action, and zations in the post election period.
000 Draft Constitution is the presence of I by the proposed new Elections CommisEh the police and armed forces. Article 111
Elections Commissioner shall notify the cilities and the number of the police offic
conduct of the election and that the Naavailable to the Election Commission the y the Commission. According to subseceploy the police officers made available to o promote the conduct of a free and fair
res
mittee on Constitutional Reform stressed egal procedures should be strengthened Prt. The duration of an election is usu-eeks, During this period adherence to ction campaigns should be strictly enprevention must be swift. It is, therestatutory remedies whereby there can nsgressions of election laws, consistent -o important that procedures be evolved
ions Commissioner is hampered by limitathat the Elections Commissioner does not

Page 19
have any control over the police and othe tions. This in turn makes it virtually imp take prompt action on complaints of the
Inadequacy of Election Laws
The election laws make no provision to sets of ballots on the basis that they were the law would allow the Commissioner polling station void are set out in the Elec 1988 under the caption "Disturbances at are 48A of the Parliamentary Elections Presidential Elections Act No.15 of 1981 cils Elections Act No. 2 of 1988)
Section 48A (1) of the Parliamentary El
Where due to the occurrence of events
(a) it is not possible to commence th,
fixed for the commencement of th (b) the poll at such polling station con
ing of the poll but cannot be cont
ing of the poll; or (c) any of the ballot hoxes assigned
ered to the returning officer,
the presiding officer of such polling sto ing officer who shall in turn inform th
(2) On receipt of an information under station in an electoral district, the Cor. quiries as he may deem necessary to a hy Order published in the Gazette, de void.
These provisions are unduly restrictive.
For example, at the Presidential Election ing Centres spread out over 8 provinces a

er military personnel on duty during elecpossible for the Elections Department to violation of election laws.. 13 .
... : ..
remove, delete or expunge individual or illegally cast. The only instances where
of Elections to declare the poll at any ctions (Special Provisions) Act No. 35 of Polling Stations” (The relevant sections
Act No 1 of 1981, section 46A of the and section 46A of the Provincial Coun
ections Act:-
- of such a nature
e poll at a polling station at the hour e poll; or ennences at the hour fixed for the openinued until the hour fixed for the clos
to the polling station cannot be deliv
ition shall forthwith inform the returnse Commissioner.
- subsection (1) in relation to a polling nmissioner may, after making such inascertain the truth of such information eclare the poll at such polling station
of 21 December 1999, of the 9534 Pollnd 22 districts, in 42 Polling Centres in 7

Page 20
Diștricts, the Commissioner of Elections from the count entirely, on the basis that ported them to be illegally polled. It is not c election law does not provide for such a p votes in the final result of the election. This needs to be regularised.
See Annex II for Data - Final Report on 1999 Presidential Election - Centre for Mor
In terms of the Commissioner of Election? regarding such cases of documented stu illegally polled. The Centre for Monitoring procedure is insufficient to account for (1) very real intimidation and sense of fear t demoralisation and loss of faith that the ele inevitably feel as they remain powerless
malpractice, and (4) the sense of apathy and political power, police ineptitude and comp tres etc. When considering the existence offending ballots does not even begin to a
Following the North Western Provincial Cor (Commissioner of Elections) in a letter date
Mr. K. Balapatabandi secretary to the presi In his letter the commissioner made a stro law. He stated that with the experience gat North Western Province Provincial Counc law should be effected urgently before the P provinces which were due to be held sho following provisions be added to section 4 (also section 48À of the Parliamentary Elec tial Elections Act) under the heading “Dist (d) if not possible to conduct the poll du
Presiding Officer. (e) if one or more polling agents are cha. (f) Non-arrival of the polling party at th
way. (g) if any disturbance of peace at the poll
poll. (h) if any stuffing of hallot papers forcih

directed that a number of votes be deleted the relevant Senior Presiding Officer's re=lear on what legal basis this was done as the rocedure. There will be no record of these s is a serious lacuna in our election laws and
Election -Related Violence, 211 December nitoring Election Violence (CMEV)
s ruling, the only recourse available to him ffing is to disregard the number of votes Election Violence in its report states that this the loss of time at the polling centre, (2) the hat would adversely affect voters, (3) the ction officials and the polling agents would to prevent such blatant acts of terror and I paralysis that stems from the realisation of licity, armed gangs taking over Polling Cenof such irregularities, simply removing the ddress these concerns.
incil elections, Mr. Dayananda Dissanayaka d27/02/99 addressed the President through dent. ng plea for the amendment of the election hered in the conduct of the elections to the il, he felt that amendments to the elections 'rovincial Council Elections to the other five rtly. The commissioner suggested that the 5A of the Provincial Councils Elections Act tions Act and section 46(A) of the Presiden
urbances at Polling Stations. e to any reasons. beyond the control of the
sed out during the poll. se polling station due to obstruction on the
ing station making it impossible to take the
!y is done by any unauthorised persons.
6

Page 21
Subsequent to this request by the Comm tions (Elections to the North-Central, Cer Province, the Southern Provincial Counc 1999) were held, but the Government ha the amendments suggested by the Commi
Law Relating to Election Petitions
Another anomalous provision of the elec for which it was enacted is section 91 0 sponding provisions in the Parliamentary
“avoidance of election on election petition
Subsections (a) and (b) of section 91 of
follows,
The election of a candidate to the offic void on an election petition on any of proved to the satisfaction of the Electie
(a) that hy reason of general bribery,
tion or other misconduct or other c enumerated before or not, a major prevented from electing the candid
(b) non-compliance with the provisions
appears that the election was not c ciples laid down in such provisions rially affected the result of the ele
It is practically impossible to frame a succ provided for under this section. It is difi conducted in accordance with the principi such non-compliance materially affecte difficulty is that there is only a limited pe petition could be filed. This limited period to collect evidence in the form of affidavi
The unsatisfactory nature of the law was the Supreme Court in the Sirimavo Bar
| 17

issioner of Elections, three sets of elecntral, Uva, Sabaragamuwa, and Western til election, and the Presidential election s todate made no attempt to incorporate ssioner of Elections into the election law.
tion law which defeats the very purpose f the Presidential Elections Act (Correand Provincial Councils Act) relating to
1. ')
the Presidential Elections Act reads as
e of President shall be declared to be * the following grounds which may be on Judge. Namely :-
general treating or general intimidaircumstances, whether similar to those ity of electors were or may have been ate whom they preferred.
' of this Act relating to elections, if it onducted in accordance with the prin
and that such non-compliance nmatection.
cessful election petition within the ambit ficult to prove that an election was not les laid down in such provisions and that
d the result of the election. The other eriod of 21 days within which a election
allows little or no time for the petitioners ts, proof of violations, etc.
amply demonstrated in the decision of adaranaike vs. Ranasinghe Premadasa

Page 22
and Chandananda De Silva election some of the more, prominent issues i fruitful discussion on the election petit cant lacuna in the law.
Mrs. Sirimavo Bandaranaike, an unsuc tion of 19th December 1988, filed a peti of the 1" Respondent (Mr. Premadasa she sought this relief are as follows1. That by reason of general intimida ! have been prevented from electing
section 91(a) of the Presidential El That by reason of non-compliance v tions Act relating to elections, the
with the principles laid down in suc affected the result of the election 1 That by reason of "other circumst sioner of Elections (the 2nd respond conduct a fair and free election, in
more particularly set out in paragra the majority of the electors were o
the candidate whom they preferred Sirimavo Bandaranaike vs. Ranasin Silva, Election Petition, was heard by a tices G.P.S de Silva, P. Ramanathan, Goonewardena.
In the Preliminary Order, the Court hele charge of “non-compliance set out in election should be affected". At the p tioner argued to the contrary. However preliminary hearing, Counsel for the Pe the "non-compliance" charge and abai the charge under section: 91(b), was a vi
A 4. ti. : In its response to the preliminary objeo section 91(b) postulates three ingredier
:;
: . . . . . . . 5 extract from (1992) 2 Sri L.R. pg. 8. * ibid.
7 ibid.

petition. This paper hopes to highlight. n this case with the hope of provoking a ion law and raising awareness of a signifi
ccessful candidate at the presidential elec
tion seeking a declaration that the election ) was void. The broad grounds on which
ution, the majority of electors were or may
the candidate whom they preferred under Lections Act No. 15 of 19815
with the provisions of the Presidential Elecelection was not conducted in accordance h provisions and that such non-compliance under s. 91 (b) of the Act. ances”, to wit, the failure of the Commislent) and/or certain members of his staff to accordance with the provisions of the Act, aph 9 read with paragraph 8 of the petition, er may have been prevented from electing 1, under section 91 (a) of the Act."
-ghe Premadasa and Chandananda De a Supreme Court Bench consisting of JusP.R.P. Perera, A.S. Wijetunga and S.B.
d that one of the essential ingredients of the
section 91(b) was that the “result of the preliminary hearing, Counsel for the Peti-, in view of the ruling of the Court in the etitioner conceded that he cannot maintain ndoned it. The Petitioner felt that proving rtually impossible burden.
tions, the Court held that the charge under
nts.
18

Page 23
1. Non-compliance with the provisions 2. Failure to conduct the election in ac
such provisions. 3. Such non compliance affected the re
The Court held with the argument forw. essential ingredients of section 91(b) of 1981 was that the result should be affec
The wording in section 91(b) of the Pre identical to the wording in section 77 (b) Order-in-Council 1946. It is clear that til changed political environment. A study period of the Ceylon (Parliamentary Ele the prevalent situation was significantly
Having abandoned the charge based on interpretation of section 91(a) of the Pre
The position of the Petitioner was that English Common Law, and that this posi Ceylon (State Council Elections) Orderthe basic and essential principles of the and fair election. The Counsel for the Pe that the expression “general intimidation our courts have hitherto looked to the E was further argued that the section was ir ate to a free and fair election and that the tion should be free and fair.
In their Preliminary Objections in the Petition, the Petitioner made the follow 1. The English Common Law of a “free
section 91 (a). The expression “maj prevented from electing the candida ity of persons entitled to vote free prevented or may have been prevent their preferences. The expression den on the Petitioner. If general in
consequence flows - that the majori * (1989) i Sri L.R. pg.240.
15

; of the Act. cordance with the principles laid down in
esult of the election.
arded by the Respondent that one of the the Presidential Elections Act, No. 15 of
ted.
esidential Election Act No.15 of 1981 is
of the Ceylon (Parliamentary Elections) he law has not evolved to suit the vastly of the precedents relied upon during the ctions) Order-in-Council 1946 shows that dissimilar to the present political climate.
section 91(b), the pivotal issue was the sidential Elections Act.
section 91(a) did more than reflect the tion was unchanged since the days of the in-Council 1931. The section contained English Common Law relating to a free titioner argued at the preliminary hearing P” was nowhere defined in the Act and that nglish Common Law for its meaning. It ntended to protect the right of the electore underlying principle was that the elec
Bandaranaike vs. Premadasa Election ing submissions to the Supreme Court. e and fair election" is what is embodied in ority of electors were or may have been te whom they preferred" means a majorof intimidation and other pressures were ed from electing a candidate according to - does not impose an additional burntimidation is established, the necessary Ey were prevented from electing the can
, - .. ... ...

Page 24
didate of their choice. All that the pe tion. Once general intimidation is ours)?
2. In this view of the matter, it is not n
the majority of the electors would on voters would have voted under diffe Unlike in the case of the statutory must be an identification of the indir case of general intimidation, the ider necessary. Furthermore, it would vi which is enshrined in Article 93 of voting for the election of the Preside by secret ballot.” A voter cannot be there was no general intimidation."
The Court considered the question of wł what the Petitioner described as the "p Law” prior to 1949, or as the Responde intimidation, etc., that something more h to have an election declared void under
Arriving at its determination, the Court ! of instances or acts of general intimidati In addition, the Petitioner had to prove tl result or consequence that the majority vented from electing the candidate who
According to section 91 (a) and (b) the alleged malpractice's were to the extent clared result. The finding of judges in ti had failed to establish the allegation that from electing the candidate of their cho satisfy Court that election' malpractice's lify the election results by invoking sect
The aforesaid section 91 (a) and (b) re evidence as proof of an election malpra court that the final declared election res said. malpractice. A problem arises as
Ibid at 249. 10 Ibid at 250.

titioner need establish is general intimidaestablished, free choice goes (emphasis
necessary to identify the candidate whom - may have preferred. Moreover, how the rent circumstances is impossible of proof. -offence of undue influence, where there vidual affected by the intimidation, in the ntification of victims is difficult and is not olate the principle of secrecy of the ballot - the Constitution which enacts that "the nt of the Republic shall be free, equal and asked for whom he would have voted, if
hether section 91 (a) of the Act embodied ure and unadulterated English Common ent contended, that in addition to general had to be proved by the Petitioner in order section 91 (a).
held with the Respondent that mere proof on would not suffice to void an election. hat these several acts or instances had the of electors were or may have been, prem they preferred.
e Petitioner is required to prove that the
capable of making an impact on the dehe above decision was that the Petitioner the majority of the voters were prevented bice, in that the Petitioner was unable to to the extent that warranted court to nulion 91 (a) or (b) had taken place.
quires the petitioner to provide tangible actice that occurred in order to convince ult may have been different if not for the to what acts or omissions would come

Page 25
within the definition ‘malpractice’. Expe ducted islandwide, election malpractice i intimidation, impersonation, ballot stuffi vote and incidents of a more grave and se the exact number of election malpractic course of onę election. There are no p indicate just how many such violations w tioner to succeed. Nor is it possible for
many. considerations that need to be take The relevant considerations would be the majority obtained by the candidate declar as to how one could ascertain which party through intimidation would have actually
Ideally, laws should respond to practical r the task of a petitioner who seeks to have reason of election malpractice is un-envia
multitude of electoral violations that may extent that the law requires. This become an election due to the fact that the victor i therefore able to harness the machinery attempts of the challenger to gather evid above context, it is evident that the preser the face of the obvious difficulties of sa required by law for a petitioner to succeed to a great extent discouraged potential i election petitions seeking to void election violence or corruption.
Registration of Electors
Section 4 of the Parliamentary Elections be used in any Electoral District shall be that electoral district on the date of the requiring the holding of an election. The Register of Electors shall be conclusive whether a person is or is not entitled to v cess of an electoral system depends large ister. Electors with eligibility to vote und of proper registration.

erience tells us that, in an election conmay take the form, inter alia, of general ng, prevention of voters from using their rious nature. It is impossible to determine e's which may have taken place in the precedents or judicial authorities which ould be required to be proved for a petisuch a standard to be set, in view of the n into account when deciding this issue. amount of votes cast, the spoilt vote, the ed elected, etc. Further, a question arises I voters who were prevented from voting
voted for.
reeds and realities. In the present context, election results declared null and void by ble. It is humanly impossible to prove the I occur in the course of an election to the 's even more difficult in the aftermath of s invariably in a position of power and is of government to effectively thwart the ence of the alleged malpractice's. In the nt legislation is reduced to mere words in tisfying the very high standard of proof 1. These insurmountable difficulties have, petitioners from even attempting to file Is on the grounds of election malpractice,
Act states that the Register of Electors to the Register of Electors in operation for publication of the proclamation or order e election laws further provide that such evidence for the purpose of determining ote for that particular election. The sucFly on the accuracy of the Electoral Reger the law should have access to a system

Page 26
In Sri Lanka, the registration of electors ta elections would take place on such a y system is the fact that heated controversy not make any impact on the Electoral F incorporated in the Parliamentary Elect separate Registration of Electors Act wa of the provisions which were then availa tary Elections) Order in Council 1946.
For the purpose of registration of electo forms a quasi judicial function. Any dete acceptance or rejection of a name for reg the Registering Officer who is, ex-offici
Procedure of Enumeration
The enumerator (Grama Sevaka Ofi tration form to every household and the householder the opportunity of fi
2. All registrations are checked against
household is left out.
3. The names are accepted by the enur
tions, regarding deletions or addition
For the purpose of revising the register f prepare two lists, “List A" containing the dead or have become disqualified for re containing the list of all new names. The tering Officer by the 31" of January the
On completion of these lists, the Registeri and in at least one newspaper in each these lists shall be open for public scruti office of the Registering Officer and at : as specified in the notice.
': '.
2

kes place annually, irrespective of whether pear or not. A distinct advantage to this / generated by an imminent election does Registers. Prior to 1980, this system was cions Order-in-Council of 1946. Later, a as promulgated which incorporated most able in Part III of the Ceylon (Parliamen
-rs, an Assistant Registering Officer perermination made by him with regard to an istration has to be challenged only before 0, the District Judge' of the area.
ficer of the area) distributes the regiscollects it on a subsequent date, giving lling such form.
* the current register to ensure that no
nerator, subject to his recommenda
For each year, the registering officer shall e names of persons in the register who are egistration for some reason and “List B” ese lists shall be completed by the Regis
succeeding year.
ing Officer shall give notice in the gazette of the national languages, and copies of ay at all reasonable hours of the day at the such other places in the electoral district
it;

Page 27
Alleged Defects of the System
The enumerating officers (the village He appointees or persons loyal to local politic their credibility.
In order to ensure that neither negligence. officer would effect this process, there is nised political parties to accompany the ei representatives have any disagreements, written representations to the Assistant C such representatives are authorised to ex omissions before the enumerators hand o fice. Even though such provisions exist, po tunity in a systematic way. As noted by t sponse of political parties is unenthusiastic sentatives and the level of their participatic
Other complaints regarding the present f form of annual registration is costly to large numbers of eligible voters, particular
Displaced Voters - With regard to displaced with the addition of a new section 127B to ment) Act No. 15 of 1988.
127B (1) Notwithstanding the prov tered elector who reasonably fears the area within which his polling ste cast his vote at such polling statio Commissioner of Elections within o requesting that he may be allowed station determined by the Commissi
(2) The Commissioner shall within inform such elector whether such api decision of the Commissioner shall in any Court of law. :
(3) Where such vote is cast, such v votes of the electoral district where
23

- 1. .,:
cadmen) of the area are often political ians. This, to a great extent, diminishes
nor bias on the part of the enumerating provision for representatives of recognumerators in their field work. If such they are expected to submit them as ommissioner of Elections. In addition; amine the document for any errors or ver the documents to the Elections Ofolitical parties have not used this opporhe Commissioner of Elections, the re
both in the appointment of these reprepn:
Form of voter registration are that this implement, and that it disenfranchises ly displaced persons.
1 voters, an amendment was introduced » the Parliamentary Elections (Amend
isions of any other Law, any; registhat due to conditions: prevailing in ition is situated, that he is unable to in, may make an application to the te week of the notice: of nomination, to cast his vote at another polling oner, in his absolute discretion. ***
a week of receipt of an application plication is accepted or rejected. The be final and shall not be questioned
- .: : : :
****: ote shall be counted along with the such elector is registered.

Page 28
The law as stated above looks fine on | provisions in a situation of actual displace have not been foreseen or provided for.
The ethnic conflict in Sri Lanka, whicł since the early 1980’s, caused the disp North and East. The above law, which vote, has proven to be wholly inadequate persons their right to vote. One glaring i applies to those who are already register persons who have attained the age of I young persons have not been registered. persons, the Department of Elections fo tion from which they do not deviate. In the Department requires correct inform previous household, proper identification stems from the fact that most of these identification documents in their frenzie ing. Therefore, these laws have proved
The grave injustice caused to these inter in the case of the internally displaced Mi 75,000 Muslims driven out of their hom taken refuge in Puttalam and other parts to Vavuniya, and from there to Puttalam forcing a number of them to set up she have faced numerous social and econom their main grievances is the deprivation
The Centre for Policy Alternatives decir lims of the north and east to file a Fund
Court. This petition was filed on 115 Ma who reached the age of 18 after 1990." the petitioners had not been included ir clare that there was an imminent infring tioners under Article 12(1) read with 3 : 12(2) and/or Article 14(1)(a) of the Con: direct the Commissioner of Elections to register for the Puttalam District.

vaper, however, when trying to apply these ment, many practical difficulties arise which
| has been continuing in an escalated form lacement of thousands of people from the I makes provision for displaced persons to : for the purpose of securing these displaced nadequacy is that the above provision only ed. There are many among these displaced 8 subsequent to their displacement. These Also, in order to enumerate newly qualified llowscertain fixed procedures of enumeraorder to register the newly qualified voters, nation of the permanent addresses of their 1, etc. The impracticality of this requirement
displaced persons have lost their personal land often chaotic attempts to flee the fightto be of little realistic use.
nally displaced voters is clearly manifested uslims of the north and east. Approximately nes in the North by the LTTE in 1990, have of the country. The displaced who travelled
were prevented from drifting further south, elter in Puttalam. These displaced persons nic deprivations since displacement. One of
of their right to vote.
ded to support the internally displaced Musamental Rights Application in the Supreme y 2000, and dealt with the issue of the youth The focal point of the said petition was that a the voter list. The Court was asked to deement of the fundamental rights of the petiand 4 (C) of the Constitution and/or Article stitution. The petition further asked Court to enter the petitioners' names in the electoral

Page 29
However, the Supreme Court did not gra Court said that the laws relating to registi visions for the public to scrutinise the rev any irregularities in the Register, as well a person's name entered in the Register.
What the Courts failed to consider was the have access to the electoral registers of t the documentation which the Elections C their proper identity. The Courts also fail helpless situation of these disadvantaged knowledge or facilities to adhere to the st
This law has proved to be wholly inadequ their right to vote. On the contrary, consic this law has become more an obstruction nally displaced persons could have sought of voting, taking into consideration their s the granting of any such direction and the and required them to make use of it hower
Citizenship Based on Affidavit
The Grant of Citizenship to Stateless Per introduced the right to claim citizenship seek registration as electors.
Since the introduction of this amendment persons have registered as electors by wa
Critics of this amendment are of the view That is;
1. The amendment works to obliterate
qualified to be recognised as citizens
2. It leads to abuse of the system by way

nt the petitioners leave to proceed. The ration of electors-provided adequate proised Electoral Registers, and to object to as to ask the Registering Officer to have
*. : :
at the internally displaced persons did not
e north, and also that they did not have Department asked for in order to confirm ed to take into account the illiteracy and persons who did not have the necessary rict regulations stipulated by the law.
ate to enable displaced persons to secure dering the verdict of the Supreme Court, 1. If not for this particular law the inter
a direction of Court for a special method special status. But this law has prevented Court simply referred to the existing law per impractical and impossible it may be.
sons (Amendment) Act No. 29 of 1988 by way of an affidavit and thereafter, to
, it has been recorded that over 350,000 iy of affidavits.
that it results in two drawbacks;
the distinction between those who are of Sri Lanka and others.
' of multiple registration.

Page 30
There has been calls to revoke this am be unfair in the light of the following fundamental right to which any one who Constitution is entitled. The mere fact fact known to have been misused is i provision. What needs to be done is to law.
Secondly, though this amendment was that most election officials, as well as tl under this amendment are not fully av amendment. Even though more than t tion, there are still instances where vo stations, or questioned of their right t affidavit. It is not correct to assume tha should therefore be repealed.
The President's Law Making Powe
Section 7 of the Public Security Ord. lations prevail over all other laws e of the Constitution continues to re State, to declare a State of Emergen
The cumulative effect of these provi: President of the Republic is to be loc making alongside Parliament. The ex) modification at the initiative of the Pre to the independence and integrity of ti
The attempt made by the Peoples Allie cial Councils elections in 1998 by ha
was an alarming example of the misu Emergency Regulations"
" See judgement in Karunathilaka and un sioner of Elections and others. (1999) I Sril

endment. However, such a move would
wo factors. Firstly, the right to vote is a v is not disqualified under article 89 of the that this amendment could be and is in ot a sufficient argument to change this
· find ways of arresting the abuse of the
ntroduced in 1988, the actual situation is 1ose who are eligible to claim citizenship rare of the provisions introduced by this en years have passed since its introduccers have been turned away from polling ɔ vote, although they have produced an it the law has achieved its purpose, and it
er in Respect of Elections.
inance provides, that Emergency Reguxcept the Constitution. Article 155 (3) cognise the authority of the Head of
cy.
sions is that in times of emergency, the oked upon as a collateral source of lawposure of the electoral process to drastic esident - a partisan figure - is detrimental ne electoral process.
ence Government to postpone the Provinsing recourse to Emergency Regulations se of the President's authority over State
other v. Dayananda Dissanayake, CommisL.R. 157,
26

Page 31
Judicial Recognition of the Right to I
(Reference to the Judgement. in Karu Dissanayake, Commissioner of Election
In Karunatilake and another v. Dayan Elections and others, generally known as the Court recognised the right to vote as expression. In this way, the right to vote, w chapter on fundamental rights in the Con of fundamental rights jurisprudence. The violated their freedom of expression by re: nent infringement of their right to vote.
Two journalists of the Free Media Mover capacity as registered voters and citizens sioner of Elections, the Returning Officer been postponed and the Attorney Genera
The Provincial Councils constituted after 1993 in the Provinces of Sabaragamuwa, tral stood dissolved by the operation of la tution.
Article 154E - A Provincial Council sł for a period of five years from the date expiration of the said period of five ye the Council.
Nominations were called for fresh electi Elections Act, and at the end of the nom under section 22(1) of the said Act fixing provinces. Postal Ballot papers were due
However, on 3rd August, the issue of posta was suspended by telegram. On the next under Section 2(1) of the Public Security ( of Emergency. A State of Emergency h Northern and Eastern Provinces, city of C ately thereafter, the President issued an E
12 ibid.

. : : * . . : ote as a Fundamental Right *****
natilake and another v. Dayananda Ls and Others12 )
- . . . . . . . . . : *** anda Dissanayake, Commissioner of the Provincial Councils Elections Case, being an integral part of the freedom of 'hich is not specifically mentioned in the stitution, has been woven into the fabric petitioners alleged that the respondents sorting to action that presented an immi
nent (FMM) instituted this case in their . The Respondents were the Commiss of the districts where the elections had
the Provincial Council Elections held in
Western, Central, Uva and North-Cenw in terms of Article 154E of the Consti
aall, unless sooner dissolved continue
appointed for its first meeting and the ears shall operate as a dissolution of
ons in terms of the Provincial Councils inations period, notices were published the poll for 28th August 1998 in all five to be issued on 4th August 1998.
1 ballot papers by the Returning Officers day, the President issued a proclamation Ordinance declaring an island-wide State ad previously been in force only in the Colombo and a few other areas. Immedimergency Regulation declaring inopera

Page 32
tive that part of the Commissioner's i Councils Elections Act which related that part of the notice was to remain State of Emergency remained in forci
Normally, postponement of provinci. amendment, but the President chose to Emergency.
The reason given by the Government that such postponement was necessitat ernment maintained that it was not pos activity due to the ongoing North-East
The President, in a notice issued to a occasion of the Emergency debate in stated that the declaration of an island disruptive acts reported in several area included attacks on electricity transfoi threats to banking and financial instituti
The notice further stated, that, in vi security forces to the conflict in the n government to stem disruptive and te An all-encompassing 'blanket' secu the government to respond effectively east. It further stated that, given t. Government was to conduct election cerns, a serious consequence woul. opposition and Government would b participating in campaign meetings
Notwithstanding the above, the declara and the postponement of the Provincial under severe criticism in many fora. E Colombo and the outstations. In their op elections was a clear indication of the u ernment. It was felt that the Emerger Government for partisan political reaso

ptice under section 22(1) of the Provincial o the date of poll. As per the Regulation, operative in each District for as long as a in the District.
l elections would require a constitutional circumvent this by proclaiming a State of
for the postponement of the elections was ed by clear logistical difficulties. The Govible to provide security for election related ern war.
| governing party Parliamentarians at the terms of the Public Security Ordinance, wide Emergency was the result of several s outside the main area of conflict. These Emers, telephone transmission towers, and
ons.
Few of the wholehearted commitment of
orth and east, resources available to the 'rrorist acts in the south were restricted. rity cover was therefore necessary for ' to such acts outside the north and the he serious situation that existed, if the s disregarding legitimate security conI be that political leaders of both the 2 placed in a vulnerable position when vithout adequate security.
ion of an island-wide State of Emergency, Councils Election by the Government came olitical parties held protest campaigns in nion, the government decision to postpone democratic policies followed by the Govczy Regulations had been misused by the is.

Page 33
Following are some points made by the pet
The situation that prevailed in the coun island-wide State of Emergency and discretion and contrary to the provision The reason given for such a conclusi actual situation in the country from the da to the date of Proclamation so as to country. It was further stated that the Proclam consideration of the emergency situatio tion of postponing the Provincial Coun The Petitioners further stated that the Regulation constitute an unlawful interi in the Commissioner of Elections in ter Councils Elections Act - compromisin by the Constitution.
The Petitioners made the following obser
ward by the Government that elections co security situation in the country.
The General Election and Presidential Eastern Provinces in the year 1994 w government forces. During the perio gency situation existed in the Northern Local Government Elections were hele an emergency situation existed in Jaffr The Presidential and General Elections in spite of massive civil disturbances p The SAARC summit was held in Colo participation of the Heads of the State 6000 policemen were deployed for the There were reports published in new made to the effect that the Governmei by Emergency Regulations. By telegrams dated 3rd August 1998, Districts suspended the issue of postal to be issued the next day.

titioners on this matter:
itry did not justify the proclamation of an therefore was an unlawful exercise of is of the Constitution. on was that there was no change in the ite of dissolution of the Provincial Councils require emergency rule throughout the
tation was not made in good faith or in n of the country, but with the single intencil Elections. : said Proclamation and the Emergency ference and usurpation of functions vested
ms of the Constitution and the Provincial g the independent status assigned to him
vations to counter the argument put foruld not be held as a result of the adverse
| Election were held in the Northern and -hen Jaffna was not under the control of d of the Presidential Election, an emern and Eastern Provinces. d in the North (Jaffna) on 29-1-1998, and na during this period of time. s were held in 1988 and 1989 respectively revailing at that time.
mbo from 26 to 28th of July 1998 with the es in the region, and it was reported that e purpose of the summit. spapers prior to the Proclamation being nt was taking steps to postpone elections
the Returning Officers of the relevant ballot papers which had been scheduled

Page 34
Justices G.P.S. de Silva, CJ, Mark Fei preme Court delivered judgement on tł
The twenty-one page Supreme Court J journalists Waruna Karunatilaka and S ponement of elections to five Provincia tions. The Petitioners challenged the regi namely;
It was a usurpation of the functie tions by the Constitution; It compromised his independent It was an unconstitutional interfe.
operation of the Provincial Cour ' . It was not in any event justified
Relating all this to the fundamental right: taking no steps to hold the scheduled ele the Returning Officers had failed to ca duty. This had resulted in arbitrary and these five provinces in violation of Artic in violation of Article 14(1)(a).
The judgement contained a severe indi for failing to live up to the independent
The position of the Commissioner of E emergency regulation suspending the d option but to comply. However, when that the Returning Officers for all the r 34. August 1998, suspended the issue issued the next day. This sequence o confronted by a presidential fait accon Elections and his staff had been aware before the gazette notice which declare Security Ordinance.. .
. :
The Supreme Court made the followin the postal ballot;

-nardo and D.P.S. Gunasekera of the Su
is matter.
udgement upheld the application made by unanda Deshapriya challenging the postal Councils by the Commissioner of Elecalation separately on constitutional grounds,
ons vested in the Commissioner of Elec
constitutional status; rence by the Central Government in the
cils, and by any security considerations.
s jurisdiction, the petitioners argued that by ctions, the Commissioner of Elections and arry out their constitutional and statutory - discriminatory treatment of the voters of cle 12(1), and a denial of their right to vote
ctment on the Commissioner of Elections role assigned to him by the Constitution.
lections was that when confronted by the ate of polling, he believed that he had no reading the judgement, it becomes clear elevant districts, had, by telegrams dated of postal ballot papers which were to be of events suggested that, far from being
pli on 4th August, the Commissioner of of the presidential design at least a day da State of Emergency under the Public
y declaration regarding the suspension of

Page 35
It is most unsatisfactory that net nor the 2nd to 13th Respondent tricts) have explained to the pe postal ballot papers was susp guarantees to the Commission. pendence in order to ensure ti impartially and without interfer * to him by article 104 in regaro Provincial Council Elections. I dependence does not authorise sential to the rule of law, and countability. Accordingly the C sons for his conduct - just as pendence of the Judiciary do reasons for judgements.
While appreciating the difficult position o that the Office of the Commissioner of El independence for the purpose of enabling entrusted to him under Article 104 of the
The Court held that both the arbitrary papers on August 3, as well as the failure August 28, were wrongful acts of the Res chise contrary to Article 4(e) of the Const to equality before the law under Article 1 sion under Article 14(1)(a)'5.
Provincial Councils Elections (Speci:
In November 1998 the Peoples Alliance ‘Provincial Councils Elections (Special Pi ble to this Bill read as "An Act to make Elections to fix a new date of poll for We North Central Provincial Councils Electi
This Bill sought to achieve two objective
3 (1999) I Sri L.R. Pg. 157 at pg 162. 14 ibid at 182. 15 Ibid at 182.

* ...:..' ther the 1" Respondent,(Commissioner) s (Returning Officers of relevant diskblic and to this Court why the issue of 2nded. Article 103 of the Constitution. er of Elections a high degree of indehat he may duly exercise - efficiently, ence - the important functions entrusted I to the conduct of elections including But the constitutional guarantee of in! arbitrariness. That guarantee is es
one corollary of independence is ac'ommissioner cannot withhold the reathe constitutional guarantee of inde2s not dispense with the need to give
f the Commissioner, the Court pointed out lections had a constitutional guarantee of ; him to fearlessly carry out the functions e Constitution. 14
suspension. of the issue of postal ballot e to take steps to hold the poll even after spondents which interfered with the franitution and violated the Petitioners' rights 12(1) and freedom of speech and expres
al Provisions) Bill.
- Government introduced a Bill titled the rovisions) Bilr in Parliament. The preamprovision enabling the Commissioner of estern, Uva, Sabaragamuwa, Central, and ons”.
S. : .

Page 36
1. To vest in the Commissioner of Ele
commencement of the Act, to appoi in lieu of the date already announce
2)
To empower the Secretary of a polit group to substitute, in place of the na a nomination paper (the nomination pleted at the time of the postpone person with his consent - but with notice being given to the former car
Six petitions were filed in the Supreme challenging the Bill. The petitions aver inconsistent with Articles 3, 4, 12, 154A
With regard to clause 2, it was pointed Act No. 2 of 1988 already contained ar Commissioner of Elections the power to cannot be held on the due date due to stances. Under that section, the Comn date of election for each province, subje be less than 14 days after the publicatio
The petitioners submitted that the Bill and the discretion to fix a new date of p ess, an area which, constitutionally, is the of Elections.
All the Petitions were taken up for cons: judgement was delivered on 30th Novem
A Supreme Court bench consisting o
Weeråsekera observed that the Comm Regulation suspending the notices he ha was held that section 22(6) therefore ap issued a notice appointing a fresh date fo
of that section, would not have been affe on August 45.

ections the duty, within four weeks of the nt a new date of poll for the five provinces ed by the Commissioner's notice. (Clause
ical party or the Leader of an independent ame of any candidate already appearing in, n process for these provinces were com
ment of elections), the name of another but the consent of, and even without any ndidate. (Clause 3)
e Court on 10th and 11th November 1998 red that clauses 2 and 3 of the Bill were -(2) and 154Q(a) of the Constitution.
but that the Provincial Councils Elections -rovision - Section 22(6), which gives the o fix a new date of poll where an election O any emergency or unforeseen circumnissioner has the discretion to select the ct only to the requirement that it must not n of the Gazette notice.
vas a legislative intrusion into the power oll in respect of a pending electoral proce exclusive preserve of the Commissioner
ideration on the 16th November 1998 and nber 1998.
f Justices Fernando, Gunawardana and hissioner was faced with an Emergency
d issued fixing the poll for 28th August. It pplied, and the Commissioner could have r the poll which, being one issued in terms cted by the Emergency Regulation issued

Page 37
The Court also held that clause 2 of the s sioner to exercise his discretion in a mann cil Elections, past and future. This was co tion given to the Commissioner by Article tion might have been different if clause 2 amending section 22(6), clause 2 as was impending five elections of the five Provi
The Court imputed an improper motive fe tions only.
It was observed that if the Commissioner section 22(6), the election would have pr already received, and the contest would ready on the respective lists.
What clause 2 sought to permit was an el ter. Clause 3 attempted to allow the sub existing ones, possibly against the will of contest could well be one between comple could not have been achieved under secti
The Court held that the Bill, under the gu sary” power to fix a new date of poll, atte tion process - and only for these five elec
If the Commissioners' power to fix a new the enacting of the Bill, the election could that the 13th Amendment which created t such a situation as it provides for an autom it's term of office and makes no provisio
The Supreme Court held further that clau the franchise protected by Article 4 (e) C this is that the text of Article 4(e) refers Presidential Elections, General Elections ingly some doubt as to whether Article 4( at Provincial Council Elections. However specifically mention elections to Provinc

said Bill sought to compel the Commiser different to all other Provincial Counnsidered an interference with the discre: 104 of the Constitution. While the posiof the Bill had been a general provision, sought to be enacted applies only to the icial Councils.
or this special treatment for the five elec
had been allowed to fix a new date under oceeded on the basis of the nominations . have been between the candidates al
ection of a completely different characistitution of new candidates in place of "those existing candidates. The resulting etely different candidates - a result which
on 22(6).
rise of giving the Commissioner "neces
mpted to permit a virtually new nominaetions.
- date for elections were dependent upon be similarly delayed. However, it is clear he Provincial Councils did not envisage Latic dissolution of a Council at the end of
n for a caretaker government.
se 2 of the Bill was an interference with of the Constitution. The significance of only to the exercise of the franchise at and a Referendum. There was accorde) protected the exercise of the franchise , the Court held that Article 4(e) does not ial Councils simply because Provincial

Page 38
Councils were introduced subsequently cle 4(e) must now be read and interpret as well."
*: : : : : : *
Clause 3 of the Bill which allowed for tł inconsistent with Article 12(1), as well
Article 4(e) of the Constitution. Clause of a Party and the Leader of an Indej name of a candidate from a valid nomii sent, without a valid reason and even w a gross violation of the right to equal tre:
In its final determination, the Court h inconsistent, inter alia, with Article 120
In view of the Court's finding that the power under section 22(6) of the Provi date for polls, the Court ordered that cla interfere with the discretionary power under section 22(6) of the Provincial C
Misuse of State Resources for Elec
The misuse of state resources for elect tion malpractice in Sri Lanka. Lately, th eral such instances. A supreme Court bei S.W.B. Wadugodapitiya and D.P.S. Gur infringement of fundamental rights prior
Western, Central, North Cenral, Sabara application was unique in that all the fut dealt with rights that have been infring complained of an imminent infringemer ers included Rohan Edirisinha, Director Petitioners claimed that the large scale a ern Provincial Council Election (Wayan lations during the elections in these five court made the following observation. secret ballot, a serious question arises weapons provided by the state for poli Subsequent to the above Supreme Cour 16 SC Application FR 265/99.

by the 13th Amendment. Therefore, Artied to include Provincial Council Elections
ne substitution of candidates was held to be as an interference with the franchise under
3 of the Bill conferred on the Secretary pendent Group the power to remove the nation paper without the Candidate's conithout notice. The Court held that this was atment of candidates standing for election.
eld that clauses 2 and 3 of the Bill were
1) of the Constitution.
Commissioner was already possessed of ncial Councils Elections Act to fix a new ause 2 of the Bill be amended so as not to vested in the Commissioner of Elections puncils Elections Act.
ction Purposes
on purposes has become a common elece Supreme Court has taken notice of sevnch consisting of Justices Mark Fernando, lasekera issued a Judgement on imminent to the Provincial Councils Election of the guwa and Uva Provinces in 1999'". This idamental rights cases filed until then had ed in the past, in this case the petitioners tof their fundamental rights. The petitionof the Center for Policy Alternatives. The Ibuse of electoral laws at the North-Westiba) raised a legitimate fear of similar vioprovinces. In its final order, the supreme “....(I)n the context of a free, equal and as to the use of vehicles, personnel and tical 'activities connected with election.” Order a group of voters including Rohan

Page 39
Edrisinha Director, Centre for Policy Altern Executive Director, Centre for Policy Alter Appeal." This was prior to the Presidential
The petitioners stated that the misuse of st tion campaign was a violation of the Supre
ment of fundamental rights. The Petitioners the Minister of Samurdhi Affairs and the S deploying or permitting the deployment of S poses, and for a writ of mandamus again directing him to take appropriate action i respondents in this petition (the Minister o Samurdi Authority, the Director General of and the Attorney General) gave an undert accept the allegations levelled against them, not to carry out any political work for car official duties.
The Counsel for the Petitioners submitted i and withdrew the application. The case di secured the recognition of the Court of the and especially, the importance of the right election.
...
In Deshapriya vs. Rukmani, Divisional Supreme Court bench consisting of Justice and D.P.S. Gunaşekera stated that "the u human resources - for the benefit of one p treatment and political discrimination beca one political party which is denied to its r. Deputy Speaker of Parliament and a Memt summoned the petitioner, a Samurdhi Niya cial government aid programme benefitin Samurdhi Niyamakas in the Dodangoda Di at which the 3rd respondent asked the Samu the people for the Peoples Alliance candid ernment) elections due to take place on 21. Alliance candidates were not the best can The 3rd respondent reprimanded the petitio 17 CA Application 1215/99.
* (1999)2 Sri LR.Pg. 412 at 418

latives and Dr. Paikiasothy Saravanamuttu, natives initiated proceedings in the court of
Election December 1999.
ate resources during the presidential elecme Court Order on the imminent infringeasked Court for a writ of prohibition against amurdhi Authority prohibiting them from lamurdhi Officers for partisan political purst the Acting Commissioner of Elections in respect of the alleged incidents. The of Samurdi, Youth Affairs and Sports, the Samurdi Authority, D.M.P.B. Dasanayake, aking to Court that although they do not they would instruct the Samurdi Niyamaka ndidates in the course of performing their
that he was satisfied with this undertaking d not go to judgement, but nevertheless, it. responsibility of the authorities concerned to vote and the conduct of a free and fair
:: ;
Secretary, Dodangoda and others18 a s Mark Fernando, S.W.B.Wadugodapitiya se of resources of the State - including -olitical party or group, constitute unequal
use thereby an advantage is conferred on ivals.” In this case the 3rd respondent, the per of Parliament for the Kalutara District,
maka (grass roots level officers of the speg the “poorest of the poor”) and all other visional Secretary's Division for a meeting rdhi Niyamakas to canvass support among ates at the Pradeshiya Sabha (Local Gov03.97. The petitioner said that the Peoples didates and declined to canvass for them. ner and said that all Samurdhi Niyamakas

Page 40
within the area had been appointed on hi: act according to his wishes. The petition he was suspended from office. The Sup clared that his fundamental rights under been violated.
The election campaign for the Presidentia a blatant use of government resources fr ment. Some of the most notable instanc use of the state' riedia for election camų Samurdhi Officers. By way of example, i President declared her intention to seek Samurdhi Affairs wrote to all Samurdhin try requesting them to make arrangemen the President in her capacity as the presid another instance, the Organiser of the PA electoral lists to the Samurdhi Officers of names of those voters who were dead or
Prior to the Parliamentary Elections sche bers of the United National Party made a s The petitioners sought a writ of prohibitio thority of Sri Lanka. A settlement was re agreeing to inform the Samurdhi Manage letter not to engage in political activities ar ment in the national news paper indicating
a) Samurdhi Managers and Samurdhi I
thority shall not engage in political act * Chapter 32 of the Established Code. b) In discharging their functions they sho
ing any political party or supporters of
t. i. : : : : : : However, it is no secret that the Samurdhi were used by the party in power during the unfair manner. Sadly, the misuse of stat have become a common occurrence, and i the election campaign for the Parliamentar fact that interested groups having continua use and also despite having received fav Appeal and the Supreme Court. 19 CA Application No. 972/2000. 20 SC Application No. 131/2000.

recommendation, hence, it was their duty to er complained that as a result of this incident reme Court held with the petitioner and deArticle 12(1) and (2) of the Constitution had
Election 1999, as in previous elections, saw or election purposes by the party in governes of the misuse of state resources were the paigns, use of state vehicles and the use of E' could be pointed out that two days after the a mandate from the people, the Minister of Ianagers and Samurdhi Officers in the counEs to deliver to each household a letter from ential candidate of the Peoples Alliance. In in a certain electoral district had distributed the area and instructed them to ascertain the
had gone abroad.
duled for 10th October 2000, several memsimilar application to the Court of Appeal19. -n and mandamus against the Samurdhi Ausached in this case too upon the respondent :rs and Samurdhi Development Officers by nd also to publish a copy of the Court Settle; that
Development Officers of the Samurdhi Auivities except as strictly authorised under the
uld act independently, fairly without favour'any political party.
Authorities as well as other state resources : presidential elections in a most blatant and e resources for election purposes seems to s evident even at the time of writing, during y General Election, 2000. This is despite the ly petitioned court against such blatant misourable responses from both the Court of

Page 41
One of the most recent Supreme Court d Hettiarachchi vs Mahaveli Authority and Assistant Security Supervisor employed by t plained that his fundamental right under A penalised for having resisted an improper depart from his duty and be a party to an act a misuse of state resources for election purp A.R.B. Amerasinghe and D.P.S. Gunaseker: ated the position it had taken in Deshapriya "The attempt to influence the petitioner to a occurred not just in general but in connection and Corporation resources (whether land, bui facilities, or human resources) directly or ind or group, would constitute unequal treatment a an advantage is conferred on one political pa
17th Amendment to the Constitution
On 8th August 2000, a Bill titled “the Sevente presented in Parliament by the Minister of Jus and National Integration and Deputy Minist amendment proposed to amend fundamental i electoral process by replacing the prevailing tional représentation with a new system which tional representation.
Article 62, 96, 97, 98, 99 and 99A of the Con toral system in the country is based on propor fair system of representation as it allows sma comes first, to gain representation. The new proposes to do away with the preferential votir many defects and causes unhealthy competiti candidates of the same party, a positive featu and not the political party, the right to decide o 17h Amendment, the number of Members i present figure of Two Hundred and Twenty Fi (298), of which, One Hundred and Sixty Eig first past the post system, Hundred (100) o and thirty (30) on the national list. The 17th Am for MP’s who are expelled from their parties strengthening the party vis-a-vis the voter. 2" supra 15.

iecisions in this area is Sampath Anura
others". The petitioner in this case, an he Mahaweli Authority of Sri Lanka, comarticle 12(1) was infringed.when he was attempt by the respondents to make him cion which the Court had interpreted to be oses. In this case Justices Mark Fernando, a, in a strongly worded Judgement, reitera vs Rukmani?". Justice Fernando stated allow the misuse of Corporation premises a with a pending election. The use of State Lldings, vehicles, equipment, funds or other irectly for the benefit of one political party and political discrimination because thereby arty or group which is denied to its rivals”.
-
centh Amendment to the Constitution” was stice, Constitutional Affairs, Ethnic Affairs cer of Finance, Professor G.L, Peiris. This provisions of the Constitution relating to the electoral system which is based on propora diluted and eroded the principle of propor
stitution guarantee that the prevailing electional representation which is essentially a aller parties, in addition to the party which system proposed by the 17th Amendment ng system. Although preferential voting has on and may lead to violent clashes between are of this system is that it gives the citizen, n their representatives in Parliament. By the n Parliament has been increased from the ive(225) to Two Hundred and Ninety Eight Eht (168) members are to be elected on the a district-wise proportional representation, mendment includes a provision which allows s to be expelled from Parliament, thereby

Page 42
The ad hoc nature of the increase in tt - mala fides. The present constitution as V for 225 MP’s but the 17th Amendment Parliament alone to have 298 Member
was so..., ,
On 3/08/2000 the Bill titled “The Sevei referred to the Supreme Court by the ( subsequently challenged by interes Saravanamuttu of the Centre for Policy petitioned that the franchise had no m power of the citizen to govern the body i of that franchise, and that a particular citizen's right to vote. It was pointed ou principle of constitutional jurisprudence th and vigilance when it comes to making
which are so vital in a representative de tional theorist, John Hart Ely has said, C reviews electoral laws to ensure that the sentative process open and prevent a sy: number of other countries including Sou preventing gerrymandering or changing cal power.
The petitioners stated thiar the presentir well as its referral to the Supreme Court norms of constitution making. The reaso inter alia;
(a) the instant Bill has not been made av
of the civil society for study in depth
to the electoral process in the presei (b) the manner in which the instant B
principles of sovereignty of the pe electoral system in the country can through the judicial process just two
is mandated to be dissolved in term (c) the provisions and effect of the insta
to the people:

e number of MP’s from 225 to 298 suggests -ell as the proposed new Constitution provides provides for the next Parliament and the next . It is interesting to speculate as to why this
hteenth Amendment to the Constitution” was Cabinet of Ministers as an urgent Bill. It was sed parties. Rohan Edrisinha and Dr. P.
Alternatives were among this number. They eaning unless it was interpreted as the basic politic through persons elected by the exercise
electoral system has a crucial impact on a at by the petitioners that it was a fundamental
at the Court's should exercise particular scrutiny changes to laws governing electoral processes
mocracy. As the famous American constituourts have an obligation to be activist when it =y are fair and keep the democratic and represtem that favours the incumbents. Courts in a uth Africa and India have been very vigilant in the election laws to suit those who wield politi
ig of the 17th Amendment in Parliament, as as an urgent Bill was contrary to fundamental ons given by the petitioners for this claim was,
ailable to the petitioners and to other members as befitting amendments to provisions relating it Constitution. ilt has been put before Court violates basic ople in that a Bill fundamentally altering the not be certified as an urgent Bill and rushed
· weeks prior to the date on which Parliament
of the Constitution. nt Bill directly contradict assurances held out
38

Page 43
The petitioners also pointed out that the fundamentally affected the right of franc (e)23 read with Article 14(1)(a)24 of the result in
. : ..." (a) the erosion of the power of the franc
their fellow citizens, which is an inalie the Constitution and would therefore
mandated by Article 83(a) of the Con (b) the erosion of the legislative power o
people fair representation in the legisla with Article 3 of the Constitution and
a Referendum as mandated by Articl (c) a decrease in the power of choosing
ently vested in the petitioner and his f prevalent in the country.
The petitioners requested, inter alia, that approved by the people at a Referendum i tion.
However, the approach of the Supreme extremely disappointing. The Supreme C brought up by the petitioners and made a approved by the people at a Referendur response of the Court in this case would go Lanka as one of the worst decisions of tt
However, the Government chose not to pa
The attempt made by the party in power introducing the 17th Amendment to the contemptible attempt made by a political !
2 In the Republic of Sri Lanka sovereignty is in th includes the powers of government, fundamental r 23 The franchise shall be exercisable at the election Members of Parliament, and at every Referendum eighteen years, and who, being qualified to be an e entered in the register of electors.
4 The freedom, either by himself or in association to manifest his religion or belief in worship, obser

e changes proposed by this amendment hise guaranteed under Articles 322 and 4 Constitution. This amendment would
chise in the hands of the petitioners and enable right guaranteed under Article 3 of
have to be approved at a Referendum as nstitution.
f the people, in that it would deprive the ature, thereby infringing Article 4(a) read I would therefore have to be approved at e 83(a) of the Constitution. a candidate of his or her choice as presellow citizens under the electoral system
the Supreme Court direct that the Bill be in terms of Article 83(a) of the Constitu
Court in the 17th Amendment case was Court failed to address most of the issues i determination that the Bill need not be
m. constitutional analysts feel that the p down in the constitutional history of Sri ne Supreme Court.
ursue this Bill in Parliament.
to introduce a new electoral system by 1978 Constitution was by far the most party in power to secure electoral victory.
ne People and is inalienable. Sovereignty rights and the franchise. 1 of the President of the Republic and of the - by every citizen who has attained the age of lector as hereinafter provided, has his name
1 with others, and either in public or in private, vance, practice and teaching.

Page 44
Conclusion
There is no doubt that the electoral pri system of representative democracy. the Constitution and its basic institutior of discharging fundamental duties coni above suspicion. Confidence in the fai ess is essential for the maintenance of If a large percentage of the public dou
would cause a breakdown of trust and and institutions. We believe that the r been a mixed one. The law and its inter in the area relating to election petitions disincentive for the conduct of free anc even if reluctant to engage in a substan follow the John Hart Ely approach and ism, i.e., creative and reason based judi channels of change and political partici

pcess represents the very life blood of the In order to inculcate a healthy respect for ns, all those who are entrusted with the task nected with the electoral process should be rness and objectivity of the electoral procdemocracy and the stability of the country. bt the integrity of the electoral process, it respect for the basic democratic processes ecord of the judiciary has in recent years pretation need to be reviewed, particularly s. The law as at present, tends to serve as a 1 fair elections. The Sri Lankan judiciary, ce-based type of judicial activism, should I engage in a process-based type of activcial activism to protect the integrity of the pation.
40

Page 45
MAIN PRESENTATION
THE LAW RELATING TO ELECT
JUDGEMENT IN SIRIMA
RANASINGHE
BL
Mr. R.K. W. G
The main presentation at the seminar was on the law relating to elections, including: election petition case, Sirimavo Bandar
Sirimavo Bandaranaike v. Ranasinghe Presidential Election Petition No. 1 of 198
The presidential election petition filed by a dential elections, Sirimavo Bandaranaike, Premadasa was heard from 19th June 19:
The background to this petition was that th case and Oswin Abeygunasekera, contest of Sri Lanka and Sirimavo Bandaranaike votes with the winning candidate, Ranasi receiving 50.43% of the votes and the th Commissioner of Elections, Chandanand elected to the office of President of Sri L
The Petitioner filed a petition on 9th Janu the Presidential Elections Act specifically
that general intimidation caused tors from electing the candidate t that the elections were not conduc the Act, that the elections were not free a
See Annex III for headnote of the judg

'IONS AND COMMENT ON THE VO BANDARANAIKE VS.
PREMADASA
1: --
'oonesekere
by Mr. R.K.W. Goonesekere who spoke a comment on the judgement of the 1989 anaike vs. Ranasinghe Premadasu.
Premadasa and Chandananda de Silva 39 **
i presidential candidate in the 1988 presiagainst the elected candidate Ranasinghe 89 to 30th June 1992.
aree candidates, namely the parties to the ed the election to the office of President = (the petitioner) received 44.95% of the inghe Premadasa (the first Respondent) ird candidate, 4.63% of the votes. The a de Silva declared the first Respondent anka. ,
ary 1989 challenging the election under
or may have caused the majority of elec
hey preferred, eted in conformity with the provisions of
nd fair.
-ement

Page 46
Mr. R.K.W. Goonesekere, Attorney at I yers who appeared for the Petitioner Goonesekere confined his presentation i
At the conclusion of the 1988 Presiden Goonesekere was retained to present a pthe elections.
Gathering information for the prepa was that the election laws in Sri Lanka a ates where candidates would be aware could be gathered and used in preparing a
with an islandwide election was different detailed knowledge of what happened in tion that arose was, who would be able
malpractices?
The simplest solution was to seek out dis
However, the environment following the could not be located or were reluctant to tices. The only area that provided concre and that is the reason why the incidents Province. With regard to the other elec generally from the Police, and specifica Elections Information Books. The police weeks prior to any election and can prov a principle source of information. In add formation.
Preparing for the main thrust of the c petition was that, where previous electio ings on the specific election day, this petit election day as well. This was an effort to to the holding of a free and fair election
The main thrust of the case was that the country did not allow for a free and fair el that the winning candidate was responsi practice as it was impossible to prove the the tone of the petition was that the envir

Law, was a member of the team of law
and in commenting on the case, Mr. co some lesser known facts of the case.
ntial Election in Sri Lanka, Mr. R.K.W. etition in court challenging the results of
ration of the petition: The first hurdle re intended for elections in small electore of malpractices and evidence of such in election petition. The situation in 1988, and it was difficult for candidates to have all areas of the island, and the main questo provide information and evidence of
strict and other level political organizers. e elections was such that many organisers come forward with evidence of malpracete evidence was the Wayamba Province cited in the petition were located in this torates, information had to be obtained lly, in what was contained in the Police : commence maintaining these books two ide a fair amount of details. This became itiori, newspapers also provided some in
ase: An important issue in this particular n petitions concentrated only on happenion took notice of events leading up to the 1 establish that an environment conducive did not prevail at the time.
e prevailing political environment in the lection. The petition did not clearly allege ble for the incidents of violence or malat the winning party incited violence, but onment prevented a free and fair election
- i

Page 47
from being held. This argument was how Respondent when evidence was shown to fact against the winning party.
Two weeks of preparation: What was 1 case of this magnitude was prepared and weeks. This was a gigantic task where the a large amount of material within a short pe complicated by the fact that incidents wh every electoral district had to be separate tioner to proceed with the case systematic
Filing an election petition and the but form in filing an election petition. Theref laws can be satisfied must be found for ea specify grounds on which the petition is br Premadasa petition was based on the pre there were acts of general intimidation an
For these grounds, the burden of proof req of general intimidation’ does not require c cient proof", which means proof that will e spread intimidation to draw an inference of g 'non compliance of electoral laws’, requ where it must be proved that this affected can also be challenged on the third ground compliance of electoral laws” which is a co above, and comes under the provisions se stances’.
The Bench: Another difficulty that ensue conclude the case. The retirement of som. quent appointment of new Judges to hear t lem. The problem was aggravated by the anew every time a Judge from the origin another. According to rules, it is not poss: serve until a case is concluded. As such, standing that the same bench would not be and this was agreed to by both parties to t who originally heard the petition, only two
| 43

ever used to strengthen the case of the prove that much of the violence was in
remarkable in this petition was that a I filed in court within a period of two Petitioner's lawyers had to sift through eriod of time. This task was made more ich occurred in each polling station in ly categorised so as to enable the Petially.
rden of proof: There are no rules on ore, the best way in which the election ich case. The law requires a petition to ought, accordingly the Bandaranaike v mise that da non-compliance of electoral laws.
uired is different. The premise of ‘acts onclusive proof”. It requires only suffiunable court to gather evidence of widegeneral intimidation. The second premise aires a more stringent degree of proof the results of the election. An election 'acts of general intimidation’ and ‘non mbination of the two grounds explained et out in the law as ‘such other circum
d was the unusually long time taken to ne Judges on the bench and the conseche part-heard case posed a grave probpossibility that the case would be heard al panel resigned and was replaced by ible to compulsorily require a Judge to the case had to proceed on the underhearing the case from beginning to end he case. In this case, of the five Judges = remained at the conclusion of the case.

Page 48
Although proceedings were written dov benefit of all incoming Judges, the suita able.
Objections: The election law does no spondent. However, Respondents may this instance, objections were raised on the petition. Six months were spent he final outcome was that all objections we fixed for trial.
The Hearing: The law requires that an e or with short intervals. But unprecedent this petition, and in one instance, the case Judge was indisposed.
Evidence: As the hearing proceeded, e
ments in the petition. This was a stupend and the necessity of gathering witnesses the Petitioner's case was concluded. It is arduous task of gathering evidence, there ing evidence in election petitions.
Conclusion: At the conclusion of leadin tions were conducted in an environment at this point requested permission to lea tions law does not provide for Responden there was no necessity for the Responden that there was intimidation.
Following a second round of gathering there was general intimidation. But the Court held that intimidation was agains which meant that the result of the electio
In conclusion Mr. R.K.W. Goonesekere
of devising a specific law for election pet which would speed up the present judici nate ways of presenting elections action

vn by every Judge and recorded for the bility of the procedure was highly debat
E require answers to be filed by the Refile objections based on the petition. In inadequacies in the material supporting aring the preliminary objections and the ere dismissed by court, and the case was
Election petition be heard on a daily basis ed delays do often arise, and did so with e was postponed for three months when a
evidence was led to establish the averlous task in view of the incidents alleged
from all over the country. Evidence led, pertinent to point out that considering the e should be a different process of gather
g evidence, it was accepted that the elecof general intimidation. The Respondents d evidence despite the fact that the elecits to lead evidence. In the circumstances, nts to lead evidence as it was established
evidence, the Supreme Court held that : key factor here was that the Supreme it the candidate who won the elections, on would not change.
expressed strong views on the difficulty itions, looking at the Country as a whole, al process. He was of the view that alter
needed to be devised.

Page 49
PANEL PRESENTATION
A panel presentation was conducted at tl Dr. Jayatissa de Costa ( senior lawyer doctoral thesis on election law and electi Commission), and Mr. Sunil Bastian (Direc ies and CPA) participated as panelists.
PRESENTATION BY DR. JAYATIS
Tracing the electoral system in Sr to the present Constitution, Dr. de proportional representation syste existence of 5-6 main parties in a
Sri Lanka has elaborate elections á free and fair manner. In many special laws. Ordinary laws govern peacefully. The main reasons for e ance of defeat and the non-accep
Looking at litigation concerning el v. Ranasinghe Premadasa, it is aj 'effectively filed. Once filed, thes law states that an election petitio that does not happen in practice. place in Sri Lanka in theory, with this, there are no free and fair ele a mandatory provision in the la heard within a stipulated time p be had – comment during the d
The issue of the absence of free a society. Where people tolerate the pasting posters during elections w ence shown by the Police when t conducive to serious corrupt prac forms of corruption in elections an act in such instances. Apart from i profession also contributes to this
45

ne conclusion of the main presentation. in the Unofficial Bar who has done a Tion petitions and a member of the Law ctor, International Centre for Ethnic Stud
ESA DE COSTA:
ri Lanka from the Soulbury Constitution e Costa spoke of the need to replace the em which inaccurately presupposes the
n election.
laws but elections are not conducted in developed countries, there are no such rn elections and elections are conducted conflict in Sri Lanka are the non-accepttance of opposition.
ections laws, i.e. Sirimavo Bandaranaike pparent that no election petition can be se petitions face further obstacles: The n must be heard within six months, but
There is a salutary electoral system in i adequate legal safeguards, but despite ections. (The six month duration is not
W, and for an elections petition to be period, the consent of all parties must Ciscussion)
und fair elections goes to the root of the e simplest of the violation of rights (i.e. hen the law prohibits it and the indifferhis is done), the environment becomes ctices. There is a need to eradicate all ad the Police must be given the power to the Police, the absence of a strong legal situation.

Page 50
PRESENTATION BY MR. SUNI.
Mr. Sunil Bastian added a brief non-leg tation looked beyond the legal process of society and the people in elections n
Mr. R.K.W. Goonesekare's present dominant legal discourse in Sri Li while the entire country and probab presidential election was one of th . seen, and could not be termed as fi tion, this fact could not be proved by dominant legal discourse. This sho pens in the highest court of the cou
These debates also illustrate the ch tions committed to free and fair elec of regular elections and a multiparty selves that we have a polity more ( countries. We were a model colon
model democracy. Most of these c -- based on the analysis of institutions
actually function in society. For exa
looked at what goes on in the field o : either on electoral statistics or study 'ally goes on behind these institutions Jayantha’s book titled 'Electoral Alle a different type of contribution. He
In writing the book, he has coinec ** because of the sensitivity of some o

E BASTIAN:
al perspective to the discourse. His présenand legal discourse and examined the role elated issues.
ation posed very serious challenges to the anka. His presentation demonstrated that ly the rest of the world knew that the 1988 e most violent elections that we had ever ee and fair by any stretch of the imagina- making use of the existing cannons of the ows the huge disparity between what hapntry and what goes on in the real world.
mallenges faced by civil society organisaetions. First of all, because of the presence
system, Sri Lankans have deluded themdemocratic than that in many third world ny, model development experiment and a onclusions about a model democracy are
without looking at how these institutions ample there are very few studies that have luring elections. Most studies concentrate
institutions without considering what re; or statistics. The only exception is Dilesh
giance of the Sinhalese'. This book makes : has looked at three electorates in detail. I naines, both for the places and people of the material.
16:

Page 51
Comments on Mr. Gooneseken Elections
First, it must be realised that it would be 1988 without taking into account the per endum was the beginning of what happ
As pointed out by Mr. Goonesekere, the was based on the first past the post sys are valid for a presidential system with stagnating in that period and not innovati by the new system?
Another possible explanation for what ha to stabilise the situation in the country. very difficult circumstances. There w occupying a part of the country. The e sion that followed certainly stabilised tl that the courts simply played its part to dominant legal discourse was certainly
Finally, as Mr. Goonesekere pointed o Supreme Court, i.e. in order to make an have contributed to a change of result where we do not know why or whether when elections are peaceful, how could when violence dominates the electoral more innovative strategies and probably arrive at a criteria that will help us to de
All these debates pose new challenges elections. Civil society organisations h
monitor elections, but it is now time to.
A1

ce's Presentation on the 1988
. . . . . . . .
e difficult to understand what happened in iod preceding it. Probably, the 1982 referened in 1988.
entire legal discourse on election petitions tem. The issue is whether those concepts its many differences. Are the Courts still ve enough to look into the difficulties faced
appened in 1988 is the political compulsion
The presidential election was held under ere two insurgencies and a foreign army lection of Mr. Premadasa and the represne situation. A political analyst might say wards achieving the same objective. The an asset in that task.
ut, the criteria of proof demanded by the election null and void, the violence should s, is impossible to achieve. In a country people will vote for a particular party even pne possible know how people will behave. | process. Certainly we have to look for y focus on the electoral process in order to cide whether an election was free and fair.
for civil society activism for free and fair ave built up the capacity and a network to go beyond this focus.

Page 52
:
GENERALI
The general discussion focused mainly {
Dichotomy between the law in the s
A grave necessity exists for the eradicati ings of society and the workings of the l; pointed out that this disparity is not exc related laws, but is more the norm in rel: a trait that is apparently endemic to sout uted this trait to the South Asian culture. ess.
** 17:}'.
Unsuitability of present election lan
42, ... Mr. R; K. W. Goonesekere stated that th for the proportional representation electi that suitable election laws should have t 1978 Constitution, giving adequate consi proportional representation system whic The Presidential Election Act was draf election laws suitable for the proportion templated by the new Constitution, the 1 the Parliamentary Election Order in Coui ignored the fact that this was an entirely it as the Presidential Election Act. The Par in this piecemeal fashion. Mr. Goonesek
with those responsible for introducing la blame the lawyers and judges involved i more activist or purposive attitude in dec
Mr. Goonesekere was of the view that t system helped to avoid malpractices un past the post system provided for smalle in a Court of Law was not as difficult as

DISCUSSION
n the following issues.
tatute and the practical exercise.
on of the rift between the everyday workaw and the judiciary. However, it must be lusively limited to elections and election ation to every aspect in our society and is h asian culture. Some participants attriband not an exception to the election proc
e present election laws were not suitable on system that exists at present. He stated been designed at the time of drafting the deration to the presidential system and the ch was being contemplated at that time. ted as late as 1981. Instead of. drafting al representation system which was conaw makers based the new legislation on cil with a few minor changes and totally lifferent kind of election and then passed liamentary Elections Act was also drafted ere was of the opinion that the blame lay Lws and that it was counterproductive to n election petition cases for not having a iding cases.
1e elections under the first past the post ike in the present PR system as the first r electorates, where proving malpractice it now is.
B

Page 53
The laws delays
Mr. Charitha Ratwatte speaking on the la suggested that a system of affidavit evi laws, an increase in the number of electi provisions for daily hearings. He was als the Commissioner of Elections and the and the independence to take the initiative be encouraged to do so. He also stresse play in this process and cited examples making practical and workable laws rathe make law.
Mr. Ratwatte suggested that election pet Citing examples he pointed out that in S tance are concluded in 3 months and that with regard to the disposal of election pet
Threat to the independence of electi
Mr. Rohan Abeygunasekera, Member o intimidation faced by election officers in duties. Obstructing the duties of election enon in our political culture. Apart from tl family and property, election officials are a
makes it impossible to carry out the duties of election malpractice is the ineffectivei such ineffectiveness is political intimidation servants and dependent on the Governmı their duty according to their conscience.) ants would risk losing their livelihood by

A - G
v's delays in handling election petitions, dence be adopted as a part of election on judges as well as the introduction of Ọ of the opinion that authorities such as Attorney General, who had the capacity in drafting new and dynamic laws should d the important rolę civil society could from other countries working towards r than waiting for the parliamentarians to
itions be concluded within six months. ingapore matters of much more impor: in Nigeria too, there were similar rules itions.
on officials
i. Ei
f Parliament highlighted the threat and the course of carrying out their election officials has become a common phenomhe actual physical violence and threats to Iso faced with political intimidation which s assigned to them. A common complaint ness of election officials. The reason for n. Election officials, who are mostly public ent for their livelihood, cannot carry out It is unlikely that these government servomplaining about election violations. -
. ili ... ,

Page 54
Electoral systems
Mr. Sunil Bastian made the following c
He stated that Sri Lanka had a classic fi present is found only in countries like tl to reform the system. The recently co proposals towards reforming it. Elector: comes. Normally the first past the post sometimes in huge majorities for the gov these majorities are utilised undemocra change the system. This was carried ou the governing party.
In analysing political institutions like th them in the context of the social structu you what these institutions mean to the Delimitation Commission, when scrutin representations to the Commission, one that really shaped the outcome of these the extent of caste representation in this
Mr. Bastian stressed that these consider debate about the electoral system. There first past the post system and the institu scrutiny would show that these instituti interests. It also gave excessive power That does not mean that we have an idea be changed in the PR system, but the de cal outcomes of the first past the post sy
- is "is • Summing Up
Summing up the discussion Mr. Rohar of thought that emerged, i.e., the sch law reform and the school of thoug society as a whole. Both these areas a go in for law reforms and changes election petitions again a viable optio
UN

pservations on electoral systems:-
st past the post electoral system, which at e UK. Even in the UK, there are attempts acluded Jenkins Commission Report has I systems produce their own political outsystem results in two-party systems, and erning party. In political cultures like ours, tically. In 1977 this majority was used to t through a process strictly controlled by
e electoral system, it is necessary to place are of a particular society. This helps tell society. For example, looking at the 1976 nising the type of organisations that made gets an idea about the type of social forces Commissions. It is quite surprising to see s process.
rations should be kept in mind when we : is a certain amount of idealisation of the itions associated with it. A more careful ons were influenced by certain sectarian to highly undemocratic political parties. il system now. Certainly, there is a lot to pates should consider the negative politi'stem as well.
Edrisinha drew attention to the two schools ol of thought that stressed on the need for it that promoted a change of attitude in re deemed equally important. We need to within the law. For example, to make and a possible deterrent. He also stressed

Page 55
the importance of being mindful const the elections such as independence of are to perform their duties in an indepe their employment. The independenc guaranteeing that.
The apparent reluctance of courts of violence and malpractice and the relu with these issues suggests that the jud
The need to modify election petition la
The phenomenon of what happens wi the ordinary lives of the people must
The entire professional world must be
Looking at delays in elections petition be adopted as part of election laws an
The general preoccupation of society evolving the best system. This itself is to ensure free and fair elections. The ers, changing of constitutional provisio representation system).
Civil society must encourage peaceful between political parties and rivals by and highlighting and giving due public

itutional issues which have a bearing on the Public Service. If election officials ndent manner, they need to be secure in e of the public service is one way of
law to take up election related cases of ctance of the judiciary to be associated iciary needs to be more independent.
aws.
thin courts of law being different from se examined.
proactive.
s, a system of affidavit evidence should d daily hearings should be stipulated.
is to amend existing laws in the hope of not sufficient to improve the system and re must be education for political leadons (possible changes to the proportional
initiatives and productive collaboration y appreciating such gestures / instances ity to these initiatives.

Page 56
་ ་ ་ ་ ་ ་ ་ .j}: : ་་་་་་་ ..,: ་ ་ ་ ་ ་ ་ ་ ་
་ : ་་་་་་་་་་་
་ ་ ་ ་ ་ ་ ་ ་ ་
་ ་ ་ ་ ་་་་་་་ །

E : ..... : )
N.

Page 57
AGE
9.15 - 9.25
Introduction -
9.25 - 10.10
Presentation o Centre for Poli
10.10 - 10.55
Presentation b The law relatin the judgement V. Ranasinghe
10.55 - 11.15
Tea
11.15 - 1.00 p.m.
Panel Discussi Panelists - Mr.

ANNEX I
NDA
Dr. P. Saravanamuttu
fBackground Paper on Electoral Laws
cy Altenatives
y Mr. R. K. W. Goonesekere ng to elections and comment on
of Sirimavo Bandaranaike Premadasa.
Sunil Bastian, Dr. Jayatissa de Costa

Page 58
༨
༣ ས་ ་

Page 59
EXCERPT FROM THE FINAL RE
VIOLENCE - PRESIDEN
Election Day (21/12/1999)
Of the 9534 Polling Centres spread out o Sri Lanka, in 42 Polling Centres in 07 dis directed that the following numbers of vo of the Senior Presiding Officers’ reports i count entirely. There will, therefore, be of the election.
Province'&
District
Electorate
Central Province KANDY DISTRICT
Hewalheta
No.10 Buta No. 36 Kolo
Kandy
No. 02 Getar
Gampola
No. 05 Ratn No. 06 Wan No. 19 Gam No. 54 Gam
Harispattuwa
No. 19 Pema No. 28 Ulla
Senkadagala
No. 10 Aru
"Kundasake
No. 11 Pilas
Udunuwara
No. 07 Yale No. 14 Niki No. 30 Enıb No. 38 Hepi
Patha Dumbara
No.07 Kaha No. 26 Nap No. 27 (f) N No. (m) Ma No. 30 Mad: No. 37 Piti) No. 41 Max
NUWARA ELIYA
DISTRICT
Hanguranketa
No. 26 Hap No. 61 Uda No. 62 Goc

ANNEX II
PORT ON ELECTION-RELATED ITIAL ELECTION ON 1999
over the 08 provinces and 22 districts of tricts the Commissioner of Elections has otes, which he has detemined on the basis to be illegally polled; be deleted from the 10 record of these votes in the final result
Number of Votes
Rejected
>lling Centre
watte Junior School Imbissa Junior School
16 Votes 107 Votes [123 Votes]
mbe Maha Vidyalaya
44 Votes
nalkaduwa Junior School awasa Piriven Shalawa polawatta Sri Sudharshanaramaya pola Lady Teachers' Training Schoo
79 Votes 40 Votes 104 Votes 1 85 Votes [308 Votes)
ratana Maha Vidyalaya - ndapitiya Grama Sanwardana Samiti Hall
146 Votes 19 Votes
ppola Technical College
30 Votes
vela Maha Vidyalaya Hall No. 02
15 Votes
goda Junior School atenna Viharasthana Dharmashalawa
ekke Woodcraftsmanship Centre ana Junior School
98 Votes 60 Votes _61 Votes 49 Votes (268 Vote]
la Community Hall ana Bogaskumbura Primary School Ladina Madya Maha Vidyalaya Hall No. Jina Madya Maha Vidyalaya Hall No. awela Sri Jinamangalaramaya regedara Primary School colkelle Parameshwara Tamil School
25 Votes 100 Votes 99 Votes 1 00 Votes 75 Voies 203 Votes 399 Votes [1051 votes)
pawara Vidyalaya
vela Kanishta Vidyalaya dwood Colony Kanishta Vidyalaya
63 Votes 25 Votes 14 Votes (102 votes)

Page 60
MATALE DISTRICT
Matale
Rattota -
TOTAL FOR CENTRAL PROVINCE
WAYẠMBA PROVINCE
PUTTALAM DISTRICT
Nattandiya
NORTH CENTRAL PROVINCE
ANURADHAPURA DISTRICT
Anuradhapura West
4 L
Mihintale
z z 7 7
UVA PROVINCE BADULLA DISTRICT
Haputale
Mahiyangana

No. 29 (m) Yatawatta Weera Parakrama MV | No. 29 (1) Yatawatta Weera Parakrama MV
1051 Votes[AI] 1016Votes [AII]
No. 02 Tibbatuwa Maha Vidyalaya
12 Votes
7 Pollin Centres
4293 Votes
No. 25 Dematapitiya Kanishta Vidyalaya
61 Votes
Ho. 21 Sumangala Vidyalaya Jo. 30 Dunumadalawa Vidyalaya
1244 Votes(AII)
186 Votes [1430 votes)
Jo. 17 Manakkulama Vidyalaya 3o, 41 Maradankadawela Vidyalaya To. 43 Maminiyawa Vidyalaya lo. 45 Kollankuttigama Muslim M. Vidyalaya
75 Votes 150 Votes 52 Votes 34 Votes [311 Votes)
lo. 04 Haldummulla Community Hall lo. 08 Sri Jinarathana Vidyalaya lo. 28 Kosgama Vidyalaya '0. 31 Weerakoongama Primary School
o. 34 Soragune Maha Vidyalaya
144 Votes 250 Votes 14 Votes 143 Votes 223 Votes (774 Votes]
0. 26 Senanigama Vidyalaya Tract 02 o. 52 Dikkendayaya Primary School o. 57 Pethiyagoda Maha Vidyalaya
86 Votes 99 Votes 411 Votes [596 Votes)
2 Polling Centres
7465 Votes

Page 61
Sirimavo Banc
V. Ranasinghe Prer
Chandananda
SUPREME COURT G.P.S. DE SILVA, C.J. P. RAMANATHAN, J. S.B.GOONEWARDENE, J. P.R.P. PERERA, J. AND A.S. WIJETUNGA, J.
PRESIDENTIAL ELECTION PETITION NO. 1 OF 1989 19 JUNE 1989 TO 30 JUNE 1992
Presidential Election Petition - General i provisions of the Presidential Elections Act free and fair election in accordance with the Act - Presidential Elections Act No. 15 of 1 s. 91(a) - Burden of proof - ss. 101, 102 Ev
The election to the office of President of 1988. There were three candidates namely Si of the Sri Lanka Freedom Party (SLFP), Ra of the United National Party (UNP) and Os
Mahajana Party (SLMP). The petitioner rece the 1st respondent 2569199 or 50.43% of tt or 4.63% of the votes. The first respondent v the eligible voters 55.32% voted. The 2nd res declared the 1st respondent elected Sri Lanka.
The petitioner by petition filed on 19 Januar Ist respondent on the following grounds.
1. By reason of general intimidation the m been prevented from electing the candidate 91 (a) of the Presidential Elections Act No. the Act.)

ANNEX III
daranaike
nadasa and De Silva.
ntimidation - Non-compliance with
No. 15 of 1981 - Failure to conduct a provisions of the Presidential Elections 1981 ss. 91(a), 91(6)-Interpretation of idence Ordinance. : " .
. . . . . . . . . . . . . . . . : Sri Lanka was held on 19 December rimavo R.D. Bandaranaike (Petitioner) enasinghe Premadasa (1st respondent)
win Abeygunasekera of the Sri Lanka eived 2289860 or 44.95% of the votes, ne votes and Abeygunasekara 235719 von by a Majority of 279339 votes. Of pondent as Commissioner of Elections to the office of President of
sit. - y 1989 challenged the election of the
majority of electors were or may have e whom they preferred under section 15 of 1981 (hereinafter referred to as

Page 62
2. Bý reason of non-compliance v elections, the election was not condı down in such provisions and such non under s. 91 (b) of the Act.
3. By reason of "other circumstances Elections (2nd respondent) and/or ce and fair election, in accordance with particularly in paragraph 9 read with the electors were or may have been p they preferred under section 91 (a) o
The petitioner called 546 witnesses, t) resopondent 32 witnesses.
The pivotal question in this case turn (a) of the Presidential Elections Act
"The election of a candidate to the void on an election petition on any of to the satisfaction of the Supreme Co
. : ... , ' : ;
(a) that by reason of general brit or other misconduct, or other circu enumerated or not, the majority of from electing the candidate whom th
This Court in its preliminary order (rej that mere proof of the several instanc suffice to avoid an election. In addi several acts or, instances had the resul
were or may have been prevented from On the basis of instances or acts of ge the Court may draw a reasonable infe
may have been prevented from electi general intimidation, the question tha tion of electors is it reasonable to sup been affected? This is the true meani
may have been prevented from electin open to the returned candidate to sho

with the provisions of the Act relating to ucted in accordance with the principles laid -compliance affected the result of the election
s" to wit, the failure of the Commissioner of ertain members of his staff to conduct a free 1 the provisions of the Act as set out more
paragraph 8 of the petition, the majority of -revented from electing the candidate whom of the Act.
he 1 st respondent 399 witnesses and the 2nd
is on the correct interpretation of section 91
which reads as follows:
office of President shall be declared to be the following grounds which may be proved Purt namely:-
bery, general treating, or general intimidation,
mstances, whether similar to those before electors were or may have been prevented ey preferred".
ported at (1989) 1 Sri LR 420, 261, 270) held es or acts of general intimidation would not tion, the petitioner has to prove that these t or consequence that the majority of electors 1 electing the candidate whom they preferred. eneral intimidation established by evidence, rence therefrom that the majority of electors 1g the candidate of their choice. In a case of t arises is - from the proved acts of intimidapose that the result of the election may have ng of the words 'the majority of the electors g the candidate they preferred. But it will be w that the gross intimidation could not pos
58

Page 63
sibly have affected the result of the elect towards preventing electors from voting of proof of an additional and distinct in the electors may have been prevented preferred.
The petitioner's case was one of pr intimidation.
In the expression “were or may difference between the words "were” designedly used because mathematical fact prevented, in many a case is impos that the majority of electors were in f: imossible to produce the requisite prooi
Held: (1) (a) The preliminary order made by t or deviation from the order is permissib the interpretation placed by Court o
(b) Proof of widespread violence di voting is not enough. Proof is necessar general intimidation had the effect that been prevented from electing the cand
(2) In so far as a charge under s.91 (b) as to whether the non - compliance affe then must consider the question whethe for the non-compliance.
Per G.P.S. de Silva, C.J. "for that purpo relevant and admissible, notwithstandi: reasonable to say that the secrecy prov apply to sec.91 (a). We think not.”
(3) The evidence of group leaders rege
mode of proof that the voters were pre choice and will not offend the secrec mind to the pattern of voter behaviour.

ion. Proof of widespread violence directed vas not enough. There was the requirement gredient of the charge that the majority of from electing the candidate whom they
eventive intimidation and not coercive
have been prevented” there is a significant .nd “may have been”. The term may was proof that the majority of electors were in isible of attainment. The burden to prove act prevented is difficult and it is almost
he Court is binding on the Court. No gloss vle. Further trial proceeded on the basis of n s.91 (a) in the preliminary order.
rected towards preventing electors from -y also of the additional ingredient that the f the majority of voters were or may have idate whom they preferred.
is concerned a Court must reach a finding ected the result of the election. The Court er the petitioner would have succeeded but
ose evidence of party affiliations would be ng the secrecy provisions would it then be isions do not apply to sec. 91 (b) and they
erding party affiliations is permissible as a sented from electing the candidate of their 'provisions. The Court may address its

Page 64
(4) On a careful consideration of the totalii of general intimidation, it appears that the t against the U.N.P: Between the period 17. date on which the Working Committee of the candidate) as many as 413 organisers U.N.P. were killed, and 237 were attacked. were spread throughout 80 polling ( whereas the anti-S.L.F.P. incidents occurre districts. Further the incidents against the of time. Numerous threats, killings and office-bearers of the U.N.P. branches at t irreparable setback to the organization and addition there were resignations from U.N. ordinary members consequent upon three were threats derected at office-bearers : numbers were compelled to resign. The . previous elections. It is natural that all this on supporters of the 1st respondent at the Pi mentary evidence establishes that the weigh was directed at the U.N.P. and its supporter measure to the low voter turn-out on 19.12.
(5) The burden of proof however slight it i or instances of intimidation had the requis electors were or may have been prevente they preferred. The petitioner has not suco the election may have been affected.
Accordingly the charge of "General intimi ground of avoidance of the election fails.
(6) Per Goonewardene J... "in terms of sect Act, an order to avoid an election it must t one. It is proved not to be a free and fai
majority of the electors were or may ha candidate whom they preferred... It is there the petitioner's case as based upon section 9 prove as the primary requisite, that the been prevented from electing the candidat

y of the evidence relating to the charge hrust of the J.V.P violence was directed 39.88 and 19.12.88 (16.09.88 being the the U.N.P. chose the 1st respondentas -, office-bearers and supporters of the
The acts of violence against the U.N.P. livisions in 15 eletorate districts, d in 23 polling divisions in 13 electoral U.N.P. were spread over a long period attacks on local party organisers and he village level resulted in a serious and the campaign of the 1st respondent. In P. branches by office-bearers and even ats conveyed by letters.Besides, there and members of the J.S.S. and large .S.S. actively supported the U.N.P. at would have had a strong adverse effect residential election. The oral and docuet of the J.V.P. intimidation and violence rs and this has contributed in no small 88 (election day.)
nay be is on the petitioner that the acts ite effect, namely, that the majority of id from electing the candidate whom eeded in establishing that the result of
dation" relied on by the petitioner as a
ion 91 (a) of the Presidential Elections e shown that it was not a free and fair r election, when it is proved that the ve been prevented from electing the 'ore, in my view, vital to the success of | (a) of the Presidential Elections Act to ajority of electors were or may have e whom they preferred.".

Page 65
Cases referred to :
Sirimavo Bandaranaike V. Ranasin LR, 240, 248, 249, 250, 258, 259,
Illangratne V. G.E. de Silva 49 NL
Abeywardene v. Ariya Bulegoda [
si m + n
4. Jayasinghe v. Jayakody [1985] 2 s
5. Ratnam v. Dingiri Banda 45 NLR
Pelpola v. R.S.S. Gunawardene 49
Tarnolis Appuhamy v. Wilmot Per
8. North Louth Case (1911) 6 O'M &
9.
South Meath Case 40 O'M & H I
10. Woodword v. Sarsons (1875) LR.
11. Wijewardene v. Senanayake 74 NI
. Shiv Charan Singh v. Chandra Bha
13. Hackney Case (1872) 2 O'M &
14. Morgan v. Simpson (1974) 3 AII E
15. Anthony v. Seger (1780) 1 Hag. O 16. Faulkner v. Elger (1825) 4B &C -
17. Ashby v. White (1704) 1 Bro Parl
18. The Drogheda Case (1869) I O'N
19. The Bradford Case (1869) 1 O' M

nghe Premadasa and Another[1989] 1 Sri 261, 263, 264, 268, 269, 270, 281, 282.
LR 169.
[1985] Sri LR 86.
Sri LR 77, 89.
145
P NLR 207.
era 49 NLR 361, 367, 368
& H 103, 124
30,141
LOC.P 733, 743, 744.
ER 97, 101..
an Singh and Others 1988 2 S.C.C. 12.
H77.
R722, 725, 726.
on 9, 13, (1775-1802) All ER 549, 550.
140.
Cas. 62.
1 & H 25 2.
& H 35,

Page 66
20. The Salford Case (1869) 10’ M.
21. The Stafford Case (1869) 10’ M
22. The Nottingham Case (1869) I O’ 23. The Borough of Dudley Case (18 24. North Durham Case (1874) 20:
25. The Thornbury Division of the Count
26. The Lichfield Case (1869) 10' M 27. The Thornbury Case (1886) 4 0°
28. The Ipswich Case (1886) 40’ M
29. London Joint Stock Bank v. Simm 30. Rex. v. Dolan (1907) 2 Irish Repo
31. R. v. Chief Constable of the Merse
others (1986) 1 All ER 257, 259.
32. The Dudley Case (1874) 20’ M
33. The Bolton Case (1874) 20’ M &
34. The Norfolk Case 9 Journ. 631. 35. The Heyw Co. 555 (n). 36. The Morpeth Case 1 Doug. EI. CI 37. The Pontefract Case 1 Doug. EI. O 38. The Coventry Case P & Kn 338, 39. The New Ross Case 2 PR & D 188

& H 133.
& H 228.
M & H 245.
74) 2 O' M & H 115.
M & H 152.
try of Gloucester (1886) 40’ M & H 63.
1 & H 25.
M & H 65.
& H 70.
aons (1892) AC 208.
rts 286.
eyside Police Ex parte Calveley and
& H 115, 121.
EH 138, 142.
1471.
C. 377. .
C&R 276.

Page 67
40. The Drogheda Case W& D 206.
Attorney-General v. Prince Ernest Aug
Amoah Ababio v, Turkson (1954) 1 WI
43.
Warburton v. Loveland (1831)2D& CI
44.
Vashit Narain Sharma v, Dev. Chandra
Paokai Haokip v. Rishang AIR 1969 S.C
Election petition challenging election of Pres
H.L. de Silva, P.C. with Ranjith Abeysuriya, Sidat Nandalochana, Anil Obeysekera, Percy Amersinghe, Nihal Jayamanna, Morris Rajap
Hewamanna, Neil Rajakaruna, S. Madawalagar by Nimal Siripala de Silva for petitioner.
K.N. Choksy, P.C. with L.C. Seneviratne, P.C. Kosala Wijayatilake, P.C., S.C. Crosette Thamt Abdul Rahman, Daya Pelpola, S.I. Mohideen, I Laksman Ranasinghe, Lakshman Perera, A. A.A.M. 1lliyas, Miss B.Y Devasurendra, Miss for 1 st respondent.
P.S.C. de Silva, P.C. Attorney-General, Tilak Addition! Solicitor-General, K.C. Kamalas Goonewardena, State Counsel and Dhammik U.R. Wijetunge, State Attorney for 2nd respo
6.

istin of Hanover (1957) 1 All ER 49.
R 509.
. (HL) 489.
IR 1954 S.C.513, 516.
.663, 666, 667.
ident
P.C., R.K.W. Goonesekera, A.A. de Silva,
Wickremasekera, S.L. Gunasekera, M.W. akse, 1. Yoosuf, C. Padmasekara, Suranjith na and Collin Senarth, Nandadeva instructed
„P. Nagendra P.C., Varuna Basnayake, P.C., piah, Sunil K. Rodrigo, Jehan Cassim, Naufel Raja Dep, D.H.N. Jayamaha, S.Mahenthiran, L.B. Brito Muthunyagam, Ronald Perera, Nilmi Yapa, intructed by S. Sunderalingam
Marapona, P.C. Solicitor-General, S. Aziz abayson, Deputy Solicitor General, FN. a Dassanayake, State Counsel instructed by ndent.

Page 68

4

Page 69
IMMINENT INFRINGEMENT
by Radhika Co
In March 1999, a group of citizens filed af ing that there was imminent infringemen
wanted their right of vote protected. The into thinking that all future elections wou
malpractice and that the citizen's right to v electoral environment dictated by the imp
The Rohan Edrisinha et al case that petitio of imminent infringement of electoral rigt ordinary citizens have gone to Court on im missions have now created judicial preced tional law. This search for “citizens' justic and/or social action litigation is a refreshir an era where civil society has been extrer
mental rights. Such litigation only succeed is responsive to constitutional issues and s rights. The recent decisions of the Sri Lan the Court is extremely responsive to put judgements have resulted from this proces ing on the role of censuring government fo likely that more cases of public interest wil ing and enriching Sri Lankan constitutiona
The petition contains some unique aspects constitutional litigation and practice in S provide remedies for an “imminent” viola aspect that has never been argued befor litigation. The sources that the petition ( away from technical documents to the use The petition draws on newspapers and ind its case. In studying public interest mover noted that the success of these movement gather independent information from the g ent newspapers as well as the fact finding
65

ANNEX IV (i)
: '. - ; : : : : : .
' OF ELECTORAL RIGHTS
omaraswamy
vetition before the Supreme Court allegt of their electoral rights and that they Nayamba debacle had frightened many ild be subject to widespread abuse and ote would no longer be meaningful in an eratives of thuggery and violence.
ned the Supreme Court on the allegation its is one in a recent line of cases where iportant human rights issues. Their subent in many important areas of constitue”, often called public interest litigation ng development in Sri Lanka and marks nely active in the viridication of fundasif there is an independent judiciary that ees itself as a watchdog of fundamental kan Supreme Court have indicated that blic interest cases and many important es. With the supreme Court actively takr the violation of human rights, it is very Ll be filed before the Court, thus expand
: : :, :: - ljurisprudence.
. : : s that are relevant to the development of ri Lanka. It also requests the Court to cion in the context of electoral rights, an e the Supreme Court in any previous Iraws upon indicate the modern move - of materials produced by civil society. ependent monitors' reports to vindicate nents throughout the world, it has been Es rests on the ability of civil society to overnment. In this regard the independorganisations within civil society have

Page 70
ia, very important role to play with reg information. Without the growth of su ested in social action litigation would ne the success of the public interest litigat: its ability to generate information indepe petition makes thus amply clear and the petition is proof that an active civil so Lanka. . : : / . : The petition analyses the violence that i Council election. Based on the indepeno described violence aimed at the election the incidents of mass impersonation, in the forcible filling of ballot boxes and ai also alleges violence against voters, act against voters and even their children alleges a climate of violence that prevai sons armed with guns and clubs walkin;
The petition identifies the causes of elec of the services requires to conduct the el
men and election officers who stood up the police failed to act on many complair taking place in front of them. It also rec officers to take necessary action due to p sively chronicled through recourse to N
The legal doctrine the petition seeks to speech in the fundamental rights chapte the concept of imminent infringement in right to grant remedies to include directi
In recent decisions of the Supreme Cou the article guaranteeing freedom of expr an integral and fundamental part of this r cation Bo 509198 - the now famous pro the right to vote as being an integral part right to vote which is not specifically me has been woven into the fabric of funda
': : i. : : * 1 . .

ard to the gathering and dissemination of ch organisations, citizen petitioners interot be able to prove their case. In this regard on depends on the wider civil society and ndent from the government. The Edrisinha extensive documentation provided by the ociety has finally begun to emerge in Sri
-... Risi. ook place during the Wayamba Provincial Hent reports of the monitors the petitioners process-the intimidation of polling agents, vasion of polling stations by armed gangs, a absence of counting agents. The petition s of intimidation and humiliation directed often with the use of firearms. Finally it led during election day with gangs of perg the streets with impunity.
toral abuse in the increasing politicisation lections. It points to the transfer of police- to political harassment. It indicates how its and even when obvious violations were ounts the intimidation that many election olitical pressure and intimidation is extenGO and newspaper documentation,
invoke relates to the interpretation of free r of the Constitution, the development of Article 26 and the expansion of the Court's ons to the police and the election officers.
irt has been interpreting Article 14(1)(a), ession to include the right to vote as being ight. Specifically in Supreme Court Applivincial council case, the Court recognised
of freedom of expression. In this way the :ntioned in the fundamental rights chapter mental rights litigation. The respondents
: : : : : : : : : .. . . . . . .
. : : : :ri: ... : : : : : ,

Page 71
were seen as violating the freedom of ex action that presented an imminent infring the petition does not seek to expand the conscience as spelt out in Article 10, a n event of legislation would require a refer preme Court would not venture so far in push the frontiers of constitutional litigati
The petition also claims that there is an vote. The elections to the Western and C therefore there was no right that had be tioners were claiming that the conduct of tion imminent in the other provinces. This ers to force the Court to intervene in the election offences only came to the Supr and therefore the Court could do nothin elections. However, in this pioneering Court to intervene in an election that wa
Linked to the nature of the demand for “imminent infringement” of the right to petitioners. In the application they reques
missioner of Elections and the Inspector ( the Court to give directions to the Comn with the Provincial Councils Elections A Officers to call for the assistance from provide safety and security to voters and tions between the Presiding Officers an The main part of the directions are, hov police. The petition calls upon the Inspe deployed effectively and impartially, tha that all police officers not to take instru superior officer or authorised officers, to plaints, to inform the President if he has will be inadequate requiring the provision give written instructions to his officers o the duties imposed upon them and warni: them if they are found in intentional dere!
6

pression of the petitioner by resorting to ement of their right to vote. Interestingly, concepts of the freedom of thought and more fundamental provision which in the rendum. Perhaps, it was felt that the Sua petition that was already attempting to on.
"imminent infringement" of the right to entral Provinces had not taken place and en actually violated. However, the petithe Wayamba elections made this violai was an imaginative ploy by the petition: conduct of future elections. In the past eme Court after the elections were over g to ensure the conduct of free and fair case there was an attempt to force the s yet to take place.
Supreme Court action in the even of an rote, is the type of relief asked for by the t the Court to give directions to the ComGeneral of Police. Specifically it requests nissioner of Elections to strictly comply ct No.2 of 1998, to instruct the Returning the Police when the necessity arises to to ensure that there is direct communica
d the Returning Officer of the District. wever, aimed at the Inspector general of ctor General to ensure that the police are et polling agents are given safe conduct, ctions from any person other than their o impartially and promptly record comreason to believe that police protection s of the Public Security Ordinance and to ne week preceding the polls spelling out ng them that action will be taken against iction of his duties.

Page 72
The Sri Lankan Supreme Court has not i sweeping directions to government of
which in the field of social action litigatic directions to the Executive, the Sri Lai cent. In the hearing before the Court thi such a nature that they seemed extren office in answer to the petition gave a o
written instructions by the Inspector Ge the requirements spelt out by the petitio place so that the petition was unnecess
ment's lawyers in detail expressing grei and fair election. The Attorney Genera the government's concern and the respo
General of Police,
Having received these assurances the Co made it clear that if the assurances wer dim view of the situation leading perhaj was extremely firm in its dealing with tł elections to the Western and Central Pr to be less violent than the Wayamba elec conversations were convinced that the hearing of this petition went a long way police that they had better act swiftly to that sense the petition was a victory. TH tried to invoke did not materialise, the q Court led to a situation where the Court n rule of law. With the Supreme Court re litigation, it appears that a golden era for: NGOs and independent individuals shou
The Supreme Court did not respond directions. Such a precedent has yet to they made the orders given by the IGP therefore a standard of accountability for
This was an important development, and "directions, it ensured some measure of
abuse.

n the past been actively involved in giving Ficials. Unlike the Indian Supreme Court on has been extremely activist giving broad akan Supreme Court has been more retiS was apparent. However, the case was of nely concerned. The Attorney General's detailed response, presenting to the Court eneral to his officers spelling out many of on. They argue that this had already taken sary. The Judges questioned the governat concern about the need to ensure a free 1 continued to present evidence showing nse of both the government and Inspector
purt dismissed the complaint. However, it e not carried out the Court would take a ps to allegations of contempt. The Court he Government. In this context, when the ovinces finally took place and were seen tions, members of the judiciary in private e Supreme Court's conduct during the y in persuading the Government and the o ensure a more trouble free election. In 1ough the legal doctrine that the petition uizzing of the Executive by the Supreme nade it quite clear that it would uphold the sponding with concern to public interest social action is before us, Citizens groups, ild make the best of these opportunities.
to the petition by enacting sweeping
· be established in Sri Lanka. However, to his staff a matter of public record and r the executive in its conduct of elections. though not as radical as giving sweeping 'accountability in the event of electoral
8

Page 73
FUNDAMENTAL
PUBLIC IN
Ruana Ra
The case of Karunatilake and Deshapriy known as the Provincial Council Elections last January?. This was the first example fundamental rights case, the outcome of voting public of five provinces. It was pr rules of locus standi imposed by Article 12 use the fundamental rights jurisdiction for
Fundamental rights cases in the past have when large numbers of affected petitione power station case and the Nawimana q. cases were area based whereas the Provin the franchise, which is common to all citize that their rights as voters had been infrin elections in five provinces where they had Emergency Regulation.
Yet the judgment, while undoubtedly be both for what it did and for what it did i as follows:
Confirmed the constitutional independen Held that this independence could not be a power coupled with a duty.
Held that the right to vote was part of th guaranteed by Article 14(1)(a). Held that the Emergency Regulation, w five provinces, was invalid. Declared that presidential immunity from basis of wrongful presidential orders.
Held that there had been a violation of
respect of the voters in the five province IS.C. Application No.509/98 2 S.C. Minutes of 27 January 1999 3 A.V.D. Harinda and others v Ceylon Electricity E 4 Environmental Foundation Ltd. and others v Atto

ANNEX IV (ii)
RIGHTS IN THE NTEREST
ajepakse
va v Dissanayaka and others, generally case', was decided by the Supreme Court of two individual petitioners bringing a
which affected millions of people. - the oof that despite the somewhat restrictive 26 of the Constitution, it is still possible to public interest litigation.
2 tended to achieve a public impact only rs have banded together, as in the Kotte uarry case.4 The distinction is that those cial Council Elections case was based on ns. Hence the two petitioners who claimed -ged were able to compel the holding of been postponed by means of a purported
eing a landmark decision, was notable not do. What it did may be summarized
nce of the Commissioner of Elections.
exercised arbitrarily but was in the nature of
e right to freedom of speech and expression
hich purported to postpone the polls due in
suit does not shield officials who act on the
the right to equality under Article 12(1) in es where elections had been postponed.
Board and others, S.C. Application No.323/97 orney General and others, (1994) 1 SAELR 17.

Page 74
What the judgment did not do, despit for the Petitioners, was to declare inv State of Emergency under Section 2 This preceded the Gazetting of the E elections, although the Proclamation, to facilitate the making of the impugn
Two journalists of the Free Media Mo pacity as registered voters and citizen sioner of Elections, the Returning of been postponed and, as required in a Attorney General.
It was common ground that the term the Western, Sabaragamuwa, Uva, Cer expired and that these Councils stood of Article 154E of the Constitution. The after called for nominations for fresh received from several political parties symbols duly Gazetted.
** By notices issued under Section 22(1) Act No.2 of 1988, elections for all fiv gust 1998. Postal 'ballot papers were while at a meeting with the Commissio political parties and groups, the Inspei to work out a security plan for the ele
However, on 3 August the issue of p Officers was suspended by telegram. Proclamation under Section 2(1) of th an Island-wide State of Emergency.' issued an Emergency Regulation decla
missioner's notice under Section 22(1 Act which related to the date of the po lation, that part of the notice was to re long as a State of Emergency remaine
................

e the strenuous arguments of Counsel alid the Island-wide Proclamation of a F1) of the Public Security Ordinance. Emergency Regulation postponing the seemed to have no other purpose than
ed regulation.
vement instituted this case in their caes. The respondents were the CommisFicers of the Districts where polls had Il fundamental rights applications, the
of office of the Provincial Councils for atral and North-Central Provinces had dissolved by operation of law in terms e Commissioner of Elections had there
elections; nominations had been duly and groups; and the lists of names and
O of the Provincial Councils Elections ve Councils had been fixed for 28 Audue to be issued on 4 August. Meanner of Elections and representatives of ctor General of Police had undertaken -ctions.
-ostal ballot papers by the Returning
The next day the President issued a e Public Security Ordinance declaring
Immediately thereafter, the President ering inoperative that part of the Com) of the Provincial Councils Elections Il. According to the words of the Regumain inoperative in each District for as d in force in that District.
PO

Page 75
The Proclamation
"..
The main thrust of the petition was tha tion 2(1) of the Public Security Ordina State of Emergency was an unlawful an discretion under the PSO. In as much security situation in the country betwee Councils and the date of the Proclamatic form of the Summit of the South Asian tion (SAARC) had been held in Colombo out that no other Emergency Regulation Proclamation, which was suggestive of Regulation being part of a single schem tioners also cited news reports prior to t the Government was already contempla before the Proclamation was issued. It the Proclamation had therefore been is. ing the elections, which was not a purp
The Court declined to make a finding that it had not had the benefit of a full a this Proclamation of an Island-wide Si earlier Proclamation affecting only certo tioners did not dispute the validity of a S Court was, amongst other issues, faced the Proclamation was severable in this ence had also been made to Section 15 Amendment) which states that:
A proclamation made under the conclusive for all purposes and and no Court or Tribunal shall any manner call in question sui making thereof or the existence
Although ouster clauses contained in o the power of judicial review under well tive law, the fact that this clause forms certainly have required it to be given sp

- , the Proclamation issued under Secnce (PSO) declaring an Island-wide l arbitrary exercise of the President's ! as no change had occurred in the :n the date of dissolution of the five In. In fact a high security event in the
Association for Regional Coopera
· during July 1998. They also pointed had been issued since the date of the the Proclamation and the impugned e to postpone the elections. The Petihe Proclamation, which indicated that ting the postponing of elections even
was the Petitioners' contention that :ued for the sole purpose of postpon
ose permitted by the. PSO.
on the Proclamation on the grounds rgument on all the relevant issues. As tate of Emergency. had. replaced the ain parts of the country, and the PetiState of Emergency in those areas, the
with the thorny question of whether fashion. An apparently belated refer4J(2), of the Constitution (Thirteenth
Public Security Ordinance...shall be shall not be questioned in any Court, inquire into or pronounce upon, or, in ch Proclamation, the grounds for the
of those grounds..., . . . . .
rdinary, legislation do not take away -established. principles of administra
part of the Constitution itself would ecial consideration. The Bench made

Page 76
clear that since it was going to fina grounds anyway, it was not disposed
In an ill-advised move (from the Goi ents had argued that neither the Pro impugned because the President could of the immunity conferred by Article fence gave the Court an opportunity
ment on the scope of Article 35 whic. ered obiter, will undoubtedly have an e embracing presidential immunity. Ref Court stated that this immunity was “ not “transform an unlawful act into a proceedings against any other person : : : : . . The Emergency Regulation
If the Proclamation had been held in suspending the date of poll would a law. However, the Petitioners also ch constitutional grounds, namely: a) that it was a usurpation of the fi
Elections by the Constitution; b) that it compromised his independ c) that it was an unconstitutional inte
the operation of the Provincial Co d) that it was not in any event justif
Relating all this to the fundamental ri that by taking no steps to hold the s and the Returning Officers had faile. statutory duty. This had resulted in ar the voters of these five Provinces in vi their right to vote in violation of Arti
The Supreme Court' came down ha ferred to two events, which had taken had a material bearing on this case. Government to re-start the electoral

in favour of the Petitioners on other to rule on this complex question.
vernment's point of view) the Respondclamation nor the Regulation could be
not be brought before Court by reason 35 of the Constitution. This line of deto make a comprehensive pronouncen, while it might technically be considffect on the popular perception of an allerring to the wording of Article 35, the reither absolute nor perpetual" and did lawful one” or prohibit the institution of
who has acted on the strength of it.2.
valid, the Regulation made thereunder utomatically have been of no force in callenged the Regulation separately on
enctions vested in the Commissioner of
ent constitutional status; erference by the Central Government in puncils; and ied by any security considerations.
ghts jurisdiction, the petitioners argued. cheduled elections, the Commissioner 1 to carry out their constitutional and bitrary and discriminatory treatment of olation of Article 12(1) and a denial of cle 14(1)(a).
rd on the Commissioner. Firstly, it replace after the petition was filed, which
First, the unsuccessful attempt by the process on its own terms by tabling a

Page 77
“Provincial Councils Elections (Speci November 19984. Second, the schedi North-Western Provincial Council whos after the Councils to which elections
The Court referred to its determination it had drawn attention to the provisio Councils Elections Act No.2 of 1988 y
Where at an election of memb administrative districts within i Council is established, due to stances the poll in any such adı the day specified in the notice Commissioner may, by notice other day for the taking of the ) in every other administrative d day being a day not earlier tha tion of the notice in the Gazett
The Court had on that occasion expres. gency or unforeseen circumstances” un Commissioner of Elections in the pre sioner had power to fix a new date on original date of August 28 had passed. judgment in this case in December 19: eral who had appeared for the Respon court for the Commissioner to take sti was pending. The Court was clearly pe take the hint and instead went on to fis election for January 25.
In the Court's view, “the undisputed (Commissioner) was not acting indep pension of the issue of postal ballot p Proclamation and Emergency Regulati Respondents offered no explanation.

al Provisions) Bill” in Parliament in iling of an election in respect of the e term of office had expired six months iad been postponed.
on the Special Provisions Bill in which ns of Section 22(6) of the Provincial vhich reads as follows:
ers of a Provincial Council from the the province for which that Provincial any emergency or unforeseen circumninistrative district cannot be taken on ? published under subsection (1), the published in the Gazette, appoint anpoll in such administrative district and istrict within that province, such other in the fourteenth day after the publica
e.
sed its view that the words "any emervould cover the situation faced by the esent instance, and that the Commis
his own initiative, especially after the It re-iterated this view when reserving 98 and indicated to the Solicitor-Gendents that it would not be contempt of eps under this section while judgment rturbed that the Commissioner did not E the North-Western Provincial Council
acts establish that the 1". Respondent endently”. As proof, it cited the susapers one day before the Presidential on – a course of action for which the

Page 78
Duties of the Commissioner
... .. Article 103 of the Constitution provia Commissioner of Elections, while Arti
The Commissioner of Electioi all such-powers, duties or fun on or vested in him by the las elections to the office of Presi Parliament and to Referenda,
This, in the Court's view, required the are conducted according to law" and or improperly cancelled or suspended,
In the event, the Court held that both postal ballot papers on August 3, as w poll even after August 28, were wrong fered with the franchise contrary to A lated the Petitioners' rights to equality freedom of speech and expression und
A feature of this case was the highly Respondents which was more akin to encounter in a civil trial rather than Attorney-General's Department on a assertion that “in the context of the p franchise cannot be regarded as a fun
It is well established that the rights gi confined to verbal speech. The Cour. refer to the authorities cited by Couns secret expression of a citizen's prefere other by casting his vote is no less ar expression than the most eloquent spe otherwise, the Court -said, would be "t Constitution”. Unfortunately, the high
missioner of Elections does not seem to to consider the implications of some
ward."

* es for the independence of the office of cle 104 states that:
Is shall exercise, perform or discharge ctions as may be conferred or imposed v for the time being in force relating to dent of the Republic and of Members of or by any other written law,
Commissioner to "ensure that elections “not to allow elections to be wrongfully or disrupted by violence or otherwise, "5
the arbitrary suspension of the issue of ell as the failure to take steps to hold the ful acts by the Respondents which interIrticle 4(e) of the Constitution and vio- before the law under Article 12(1) and der Article 14(1)(a).
negative stand taken on behalf of the the type of technical defences one might the stand that ought to be taken by the
matter of public law. This included the Iresent Constitution, the exercise of the
damental right"6.
laranteed under Article 14(1)(a) are not :* did not even consider it necessary to
el in order to hold that "the silent and 'nce as between one candidate and an! exercise of the freedom of speech and ech from a political platform". To hold o undermine the very foundations of the
constitutional office held by the Com» have inspired him or his legal advisers of the defences they were putting for

Page 79
The Petitioners' challenge to the validit ing the poll was not met with any materi have been a threat to national security a took up a plea of misjoinder, namely tha should have been named as parties in ora Court. This plea' was rejected by the B required to be joined in a fundamental have infringed the rights of the petitioner. In as much as the Respondents were the it was up to them to obtain the relevant
Once a Proclamation has been issued de of the Public Security Ordinance autho regulations “in the interests of public . order and the suppression of mutiny, rio nance of supplies and services essentia Article 155(2) of the Constitution, such . pend the operation of the provisions of Constitution itself. Hence an emergency rights except to the extent permitted by restrictions by law in the interests of nation implicitly relied on by the Respondents) the Court's view, had made out a prima f to national security and public order to ju had failed to place any material before the suspension of the poll was "arbitrar)
An interesting obiter dictum was that en egated legislation but the impugned regu not confer a power to suspend the poll y to time on the basis of laid down criteria purporting to suspend a particular set authority to do so.
While the practical merits and demerits tinue to be debated, the Councils have decisions on constitutional law." The c Dissanayaka and others, despite the Cou of the Proclamation, contains enough ma that list.

y of the Emergency Regulation postponal that suggested that there could in fact or public order. Instead, the Respondents Et persons responsible for public security ler to place the necessary material before ench which pointed out that the parties rights application are those whose acts , not those who might produce evidence. parties seeking to justify the Regulation, evidence.
SAC, Pla espo
eclaring a State of Emergency, Section 5 prizes the President to make emergency security and the preservation of public t or civil commotion, or for the mainteEl to the life of the community”. Under regulations can override, amend or susany law other than the provisions of the - regulation cannot restrict fundamental.
Article 15.* While that Article permits nal security and public order (the grounds the test is objective. The Petitioners, in Pacie case that there was no known threat estify the Regulation, and the Respondents Court to contradict that position. Hence v and unreasonable".
nergency regulations are a form of delElation was not legislative in form. It did vhich could then be exercised from time a, but was more in the form of an order of notices without any prior legislative
- of the Provincial Council system con
given rise to some important judicial ase of Karunatilake and Deshapriya v rt's refusal to pronounce on the validity eterial to be a comprehensive addition to

Page 80
S A State of Emergency had previously been in
the city of Colombo and a few other areas.
6 As the Court pointed out, challenges to the vali
earlier actions, eg. Joseph Perera vA.G. (1992
7 Fernando J. with the Chief Justice and Gunase!
* This Bill was successfully challenged in the S
others v Attorney-General, S.C. Minutes of 30
9 The full import of this statement is yet to be ex (S.C. 265 & 266/99 F/R) in which voters asked
Elections and the Inspector-General of Police s of time before election day these cases did not g responsibility from the authorities concerned.
10 See written submissions filed by Respondents
11 Their interpretation of Section 22(6) of the Pro
only have given the Commissioner power to rebeen lawful, not where it was invalid; thus imp face of an unlawful interference with the poll.
12 Quaere whether an emergency regulation can ov
franchise under Article 4(e) of the Constitution
13Eg. Mahindasoma v Maithripala Senanayake a
principle of constitutional construction that the be given effect to." (per Gunawardena J. at 188 perceives the intention of the framers to have

force only in the Northern and Eastern Provinces,
idity of Emergency Regulations had been made in
) 1 Sri LR 199.
kera J. in agreement.
upreme Court: Janatha Vimukthi Peramuna and - November 1998.
splored but a start was made in two applications for directions to be issued on the Commissioner of -o as to ensure a free and fair poll. Owing to a lack go to judgment but secured an acknowledgment of
dated 28.12.1998.
ovincial Councils Elections Act was that it would fix the poll where the Regulation postponing it had Jying that the Commissioner was powerless in the
serride or suspend the people's right to exercise the
and Another (1996) 1 S.L.R. 180: “It is a cardinal e intention of the framers of the Constitution must B) Of course this actually means what the Court been.

Page 81
Supreme Court of the Democi
Coloml
In the matter of Constitution
1. Varuna Cud
Keels Ho Talawatugo
2. Waduge M
Robert Gun
SC Application
No 509/98
Vs.
1. Dayanand
Elections Jayawarda
G.D. Ama of Monar:
3. W.M.A. W
of Badulla
4. D.M. Nanc
of Kandy,
5. P.D. Amar:
of Matele,
77

ANNEX IV. (iii)
ratic Republic of Sri Lanka, bo 12.
fan Application under Article 126 of the
hanimal Karunthilaka, 7, Crestwood I, using Scheme, Hokandara Rd.,
da.
ethsiri Sunanda Deshapriya, 56/ 24, awardana, Mawathe.
Petitioners
a Dissanayaka., Commissioner of -, Election Secretariat, .. Sri
nepura.
rakoon, Returning Officer of the District agala, District Secretariat, Monaragala.
ijekoon, Returning Officer of the District a, District Secretariat, Badulla.
disena, Returning Officer of the District District Secretariat, Kandy.
asinghe, Returning Officer of the District
District Secretariat, Matale.

Page 82
6. D. Hetti
Nuwara
7. J. Hettia
of AI Anuradh
8. J.H.K. A
of Polonn
9. M.J.K. P
of Ratna
10. K.M. Ar
of Kegal
11. A.I. Wic
of Kalu
12. T. Hapar
of Gamy
13. S.R. Wee
of Coloi
14. The Att
Departm
Before :
Counsel:
G.P.S. de Sil Fernando, J, Gunasekera,
R.K.W. Goo Hewamanna Ms. Kishall I for the Petiti
K.C. Kamala : , . : :
pi: , {

arachchi, Returning Officer of District of Eliya, District Secretariat, Nuwara Eliya.
rachchi, Returning Officer of the District nuradhapura. District Secretariat, zapura.
beykoon, Returning Officer of the District aruwa, District Secretariat, Polonnaruwa.
erera, Returning Officer of the District pura, District Secretariat, Ratnapura.
iyaratne, Returning Officer of the District le, District Secretariat, Kegalle.
-krama, Retuming Officer of the District tara. District Secretariat, Kalutara.
agama, Returning Officer of the District paha, District Secretariat, Gampaha.
erakoon, Returning Officer of the District mbo. District Secretariat, Colombo 12.
corney - General, Attorney - General's ent, Colombo 12.
Respondents
va, CJ,
1.
nesekera with Suranjith , J.C. Weliamuna Pinto Jayawardena oners." isabayson, PC, SG, with
ii.
8.

Page 83
U. Egalahe M. Gopalla
Argued on:
4th and 7th D
Written Submissions on: 28th Decembe
Decided on:
27th January
Fernando.J:
This application is a sequel to the failure t cils of the Central, Uva, North-Central,
The five-year terms of office of those Pro 1998, although not on the same day. E administrative districts, and each such dis purpose of elections to the Provincial Co Provincial Councils Elections Act, No Commissioner of Elections to appoint a Section 10 provides:
(1) Within one week of the dissolution operation of Article 154 E of the Constitut a notice of his intention to hold an elect specify (the "nomination period") during received by the returning officer the province....
(2) The nomination period shall comi publication of the notice.......... and expi the day of publication of such notice."
Notices under section 10 of the Act were d tion periods for two elections expired on the other two on 15.7.98, and the nomin those dates. All five elections being o returning officer, "as soon as may be afte

wa, SC, Virån Corea, SC, and Lwa, SC, for the Respondents.
ecember 1998
er 1998
999. . 999
ɔ hold elections for the Provincial CounWestern and Sabaragamuwa Provinces.
Ivincial Councils came to an end in June iach Province consists of two or more strict constitutes an electoral area for the uncil of that Province. Section 7 of the
· 2 of 1988, ("the Act"), requires the returning officer for each such district.
of a Provincial Council by reason of the ion..........the Commissioner shall publish. tion to such Council. The Notice shall
which such nomination papers shall be of each administrative district in
mence on the fourteenth day after the re.......... on the twenty - first day after
uly published in June 1998. The nomina3.7.98, for the third on 11.7.98, and for ation processes had been completed by contested, section 22(1) required every . r the conclusion of the [nomination)

Page 84
proceedings”, to publish a notice speci less than five weeks or more than eight notice" - as well as other particulars rela the situation of the polling stations. Not in number - were published on 15.7.98,
It appears from the above statutory prov a speedy election, within about three n have been achieved had the poll been ta
In this application the two Petitioners cc dent, the Commissioner of Elections (“t Respondents (the returning officers of th five Provincial Councils, on and after fundamental rights under Articles 12(1)
. . . . . .
Before that date of poll was fixed, the 1st all recognized political parties. Accordi 25.6.98, the 1st Respondent stated, that held on a single day as mentioned at th Generalof Police stated that “necessary and that he is working out a scheme to reference to any difficulty in providing simultaneous or staggered.
The 1st Respondent, in his affidavit filed change in the security situation, or any di for the poll. On the other hand, in suppor a problem during the relevant period, the of the South Asian Association for Regi
with the participation of the Heads of July.
I must refer at this stage to another impo voting. Regulation 10 of the Postal V Regulations, 1988, contained in the sec returning officer “not later than ten days a to give notice of the time and place at w
Regulation 17 provides that every return

Fying the date of poll - “being a date not
weeks from the date of publication of the cing to the duly nominated candidates and ices in respect of all the districts - twelve
fixing 28.8.98 as the date of poll.
isions that the Act was intended to ensure aonths of dissolution. That object would ken on 28.8.98 But that did not happen.
mplain that the failure of the 1st Responhe Commisssioner”), and the 2nd to 13th e twelve districts) to hold elections to the - 28.8.98, was an infringement of their
and 14 (1) (a).
Respondent had summoned a meeting of ng to the minutes of that meeting, held on
"elections to Provincial Councils will be e previous meeting", and the Inspector - security will be provided for the election
fulfil these requirements". He made no security, whether the five elections were
l in these proceedings, did not allege any fficulty in obtaining or providing security t of their contention that security was not
• petitioners pointed out that the Summit onal Co-operation was held in Colombo, Member States, during the last week of
rtant matter. The Act provides for postal oters’ (Provincial Councils Elections) ond schedule to the Act, requires every fter the last day of the nomination periodo nich he would issue postal ballot papers.
ng officer “shall immediately on receipt

Page 85
of a (postal ballot) before the close of th voters' ballot box" and Regulation 19 prov soon as possible after the close of the p indeed, no need for provision - for a sep voting. The postal voting process is ancill the poll, whether taken on the date origin The Regulations do not expressly authori the postal voting process. That is unnec postponed, regulation 17 ensures that the until the close of the poll on the new date; that would automatically abort that proces
It is not disputed that all the returning off papers would be issued on 4.8.98. The Pet 23.7.98. If all the notices had been issu respect of three Provincial Councils notic after the last day of the nomination period days for the completion of the postal votir "by telegram dated 3.8.98, the respective voting that was fixed for 4.8.98... and no re and this the Respondents admitted. Ac Assistant Commissioner of Elections, Kal not drawn to any provision of the Act or o Commissioner, an Assistant Commission issue of postal ballot papers, or to re-start if such provisions can be implied, that su extremely difficult to re-start the postal v 28.8.98. It is most unsatisfactory that neit 13th Respondents, have explained to the postal ballot papers was suspended. Artic the Commissioner of Elections a high deg that he may duly exercise - efficiently, im important functions entrusted to him by . elections, including Provincial Council ele of independence does not authorize arbitr the Rule of Law. and one corollary of inder the Commissioner could not withhold th constitutional guarantee of independence the need to give reasons for judgments.
The very next day, on 4.8.98, H
81

e poll, place it unopened in the postal ides for the counting of postal votes "as ll". There is thus no provision' - and, parate date of poll in respect of postal ary to the poll itself, and would end with ally fixed or on some subsequent date. ze the postponement or cancellation of cessary : if the original date of poll is : postal voting process would continue and if the poll itself is validly cancelled,
S.
icers had given notice that postal ballot itioners produced one such notice dated ed on that date, it would mean that in ces had been issued more than ten days 1. Nevertheless, that would have left 24 ng process. The Petitioners averred that returning officers suspended the postal easons were given for such suspension”, copy of one such telegram sent by the Lutara was produced. Our attention was f the Regulations which empowered the er, or returning officers to suspend the that process after suspension. But even spension, at that point of time, made it oting process in time to complete it by Cher the 1st Respondent, nor the 2nd to ublic and to this Court, why the issue of le 103 of the Constitution guarantees to gree of independence in order to ensure ipartially and without interference - the Article 104 in regard to the conduct of ctions. But the constitutional guarantee ariness. That guarantee is essential for pendence is accountability. Accordingly, e reasons for his conduct - just as the of the Judiciary does not dispense with
E. the President issued a Proclamation

Page 86
under section 2 bringing the provisions (“PSO") in to operation throughout Sri L (the "impugned Regulation") under sectio
"For so long, and so long only, as I in operation in a Province for which a Prov Schedule hereto has been established, suc Provincial Councils Elections Act, No. 2 in the corresponding entry in Column II o of poll for the holding of elections to such purposes, to be of no effect."
The previous Proclamation under sectior the provisions of part II of the PSO int Provinces and in some parts only of the o parts of seven (out of the seventeen) dist was the Petitioners' contention-which w period before August 1998 the Proclan section 2 applied mainly to those two Pro The Petitioners also averred that the 1994 similar Proclamation had been in force.
The learned Solicitor-General stated dur Emergency Regulation was the only one gency to the whole of Sri Lanka.
The poll was not taken on 28.8.98. It mu did not purport to cancel the five election effect" - in effect, to cancel - the particu fixed by notices under section 22. It inva not purport to override, amend or susp Regulations, and it left untouched the pro
(6) Where at an election of mer administrative districts within Council is established, due to any the poll in any such administra specified in the notice published (of Elections) may, by notice pu day for the taking of the poll in other administrative district within not earlier than the fourteenth day
.

of part II of the public security ordinance Lanka, and made the following Regulation
n 5:
'... :
..
Part II of the Public Security Ordinance is vincial Council specified in Column I of the h part of the Notice under section 22 of the of 1988, published in the Gazette specified f the Schedule hereto, as relates to the date Provincial Council shall be deemed, for all
a 2, imade one month before, had brought o operation in the Northern and Eastern ther seven Provinces: namely, in specified cricts in those seven Provinces. Indeed, it Pas not disputed - that for a considerable nations made, from time to time, under -vinces, and not to the whole of Sri Lanka. Presidential Election had been held while a
ring the oral argument that the impugned hade pursuant to the extension of the emer
ist be noted that the impugned Regulation s altogether, but only to "deem to be of no lar date of poll (namely, 28.8.98) already lidated or suspended those notices, but did pend any provision of the Act or of the ovisions of section 22(6) :
mbers of a Provincial Council from the the Province for which that Provincial emergency or unforeseen circumstances tive district cannot be taken on the day
under subsection (1), the Commissioner Eblished in the Gazette, appoint another
such administrative district and in every a that Province, such other day being a day - after the publication of the notice in (the)

Page 87
Gazette.” [emphasis added]
Although speedy elections were, ur importance, the 1st, Respondent did not
date of poll.
The Petitioners filed this application on 03
(1)
the Proclamation was an unwarran contrary to the Constitution, not ma security situation in the country or postpone the five elections;
(2)
the Proclamation and the impugn interference with and usurpation of of Elections, under the Constituti constitutionally guaranteed indeper
the impugned Regulation was contr because it had the legal effect of ov of the Constitution relating to -
(i) the continued existence of th
the franchise, and (iii) Articles 12(1) and 14(1) (a); a
(ii)
(4)
the conduct of the I st to 13th Re elections was "unreasonable arbi purpose, discriminatory, and in viol (a) of the Constitution".
They prayed for a declaration that their and 14(1) (a) had been violated, and fi Respondents to nominate a fresh date fo hold those elections in terms of section 2 prayed for costs they did not ask for con
At this stage I must mention two importar about November 1998: the Provincial ( Bill ("the Bill") was placed on the Order Council of the North-Western Province i five-year term of office.

deniably, a matter of paramount public ing, on and after 4.8.98, to'fix another
ii ! } (i.
.09.98 alleging that: .
Sii. ted and unlawfulf'exercise of discretion ide bona fide or-in consideration of the che five Provinces, but solely in order to
. ed Regulation constituted an unlawful 'functions vested in the Commissioner on and the Act, and compromised his ident status;
ary to Article 155(2) of the Constitution, verriding and suspending the provisions
FE'I HA *** e five Provincial Councils; jne
revid r. and
spondents in not holding the said five trary, contrary to law, for a collateral ation of Article 12(1) and Article 14 (1)
Fundamental rights under Articles 12(1) or an order directing the 1 st to 13th r the five elections and to take steps to 22 of the Act forthwith. Although they
pensation.
tevents which occurred thereafter, in or Councils Elections (Special Provisions) Paper of Parliament, and the Provincial vas dissolved upon the expiration of its

Page 88
The Bill sought to achieve two objec Commissioner the duty, within four wi Bill when enacted into law, to appoint "having regard to the periods specified the date of poll specified in the Notici purported to empower the Secretary of leader of an independent group to substi appearing in an already completed and another person with his consent - but i notice to, the former candidate.
The Bill contained no provision which i the returning officers, notwithstanding last day of the nomination periods, to gi issue of postal ballot papers. It is true. "subsequent issue" of postal ballot paper: issue (i.e. of the identical ballot papers) tion 10(1). And even if an initial issue contemplated by Regulation 10(2) is an i "amended" ballot papers.
This Court, in its Determination made o inconsistent with, interalia, Article 120 conclusion, this Court found that the Act for fixing another date for the poll, and v on that provision:
If for any reason, which falls w unforeseen circumstances”, the p by the returning officer under sec missioner the power to appoint ar either before the appointed day, or if one week before that day widesp it evident that a proper poll canne or unforeseen circumstance Here, on 4.8.98, the Commiss Regulation purporting to suspenc relation to the date of poll. If the before 28.8.98 (in all five Provinc revocation, or disapproval by P
8

ives. Clause 2 purported to vest in the eks of the date of commencement of the a date of poll for the said five elections n section 22(1) (c) " of the Act, "in lieu of published under section 22". Clause 3 a recoginzed political party or the group ute, in place of the name of any candidate accepted nomination paper, the name of without the consent of, and even without
vould have enabled the Commissioner or che lapse of more than ten days after the ve notice afresh of the time and place of Ehat Regulation 10(2) does provide for a s. but that cannot be done unless an initial had already taken place under Regulahad taken place, the "subsequent issue" ssue of identical ballot papers, and not of
on 30.11.98, held that both clauses were ) of the Constitution. In coming to that already made provision, in section 22(6), vent on to consider the impact of the Bill
ithin the ambit of "any emergency or oll cannot be taken on the day specified cion 22(1), section 22(6) gives the Comnother day. It is clear that he may do so in or after the appointed day; for instance, read floods (or a serious epidemic) make It be held, on that day, any "emergency ;” prevent the taking of the poll. oner was faced with an Emergency the notices issued under section 22 in Proclamation had ceased to be operative :s or even in one Province) - by virtue of rliament, or otherwise -then some or all

Page 89
of those notices would once again! and the poll could have been take and ex facie the Proclamation cor was not taken on the due date. As f on and after 28.8.98 the position not) was that the poll had not been gency or unforeseen circumstances'
He had therefore the power to appe had done so, a poll would have b which he then issued under sectio been affected in any way by th made on 4.8.98, and (ii) the ne "nominations" part of the noti on 15.7.98, which part the Eme [emphasis added.]
From the learned Solicitor-General's writte appears that he does not agree with Commissioner was concerned, on and a Regulation was valid or not) was that the because of 'emergency or-unforeseen cir the power to appoint another date for the contended that the Commissioner could ex and Regulation are valid: if not, "section 2
I am unable to accept that contention beca words to section 22(6), so as to make it r
"Where............ due to any emergency otherwise than from the unlawful [or in the poll....... cannot be taken on the day sp appoint another day...”
The language of section 22 (6) is plain and relation to "emergency or unforeseen circ indication that all such events and circum There is no justification for restricting that the emergency or the unforeseen circum causes or of human acts; and in regard to t Commissioner (or his officers), or of can parties. Likewise, the section makes no o acts.

have become unquestionably operative, n on 28.8-98. But that did not happen, itinued to be operative: and so the poll ar as the Commissioner was concerned, (whether the Regulation was valid or taken on the due date because of "emer '. Section 22(6) was therefore applicable. pint another day for the poll. And if he een taken on the basis of (i) the notice ɔn 22(6), which notice could not have e Emergency Regulation previously ominations already published in the ces issued by the returning officers rgency Regulation had not touched."
en submissions filed in this application, it
the conclusion that "as far as the ifter 28.8.98 the position (whether the : poll had not been taken on the due date cumstances' (and that) he had therefore e poll". The learned Solicitor - General
ercise his power only if the Proclamation 22(6) cannot be invoked".
use it requires the addition of restrictive
ead:
or unforeseen circumstances, arising valid or improper] acts of any person, pecified........ the Commissioner may.......
lunambiguous. The word "any", used in cumstances", is an unambiguously clear stances are included, howsoever caused. provision in any way: it applies whether stances are the consequence of natural he latter, whether they are the acts of the didates (or their supporters), or of third listinction between lawful and unlawful

Page 90
Even if there had been any ambiguity or is none), the context demands that a bro be adopted. If the Commissioner had po
was not taken due to a lawful act, it wou could not be taken: there would then Provincial Council. That would render n and especially Article 154A, of the Cons existence of elected Provincial Councils.
would not permit the fixing of a new taking of the poll on the date originally 1 disruption of the poll - by the political th of non-contestants, or by any other mear deliberately destroyed the ballot papers missioner would be unable to fix a newd as the learned Solicitor-General suggest
In my view, "any emergency" and "unfo the Commissioner to fix a new date, mu is reasonably possible, so as to enable an which would result in its indefinite postp
The learned Solicitor - General's content 1st Respondent's position. The 1st E Regulation was validly made under secti no alternative but to refrain from taking the Provincial Councils elections". If in cise his power under section 22(6) only were valid, and if his honest view was i were valid, why did he not promptly fi: able that the 1st Respondent did not co was valid and what his powers and indefinite postponement of those electio
It is necessary at this stage to consider w unfetterd and unreviewable discretion, Article 154A contemplates the continuer iit: follows that elections must not be de power to fix a new date must therefore demand it, and especially where the tal means. Had the 1st Respondent refrain because in his honest opinion he rei circumstances did not permit a poll to

'uncertainty (and I am satisfied that there ader rather than a narrower interpretation swer to fix a new date only where the poll ld mean that in all other cases a fresh poll pe no election, and therefore no elected ugatory the provisions of Chapter XVIIA, titution which contemplate the continued
Further, to accept an interpretation which date, where unlawful acts prevented the fixed, would be an open invitation for the uggery of contestants, by the terrorist acts is. Again, if the Commissioner's officials and thereby prevented the poll, the Comate. To restrict the ambit of section 22(6), s, would do violence to its language.
preseen circumstances", and the power of st be given the widest construction which election to be held, and not a construction tonement or cancellation.
ion exposes a flagrant contradiction in the Respondent averred that the impugned on 5, and that upon its publication he "had - any further steps towards the holding of deed it was his position that he could exer/ if the Proclamation and the Regulation that the proclamation and the Regulation < a new date? The conclusion is inescapnsider whether the impugned Regulation duties were, but tamely acquiesced in the
ns.
-hether "may" in section 22 (6) confers an
or a power coupled with a duty. Since Hexistence of elected Provincial Councils, layed more than is really necessary. The De exercised whenever the circumstances King of the poll is prevented by unlawful ed, initially, from exercising his discretion asonably concluded that the prevailing be taken, that would have been a proper

Page 91
exercise of discretion, but even so, he w exercise his discretion no sooner the circ spondent did not even consider, initially should fix a new date. Instead he simply from taking any further steps towards ho persisted in his failure to fix a new date, dated 30.11.98, and what tranpired on 7 this case:
“[The Solicitor-General] states that h the question of appointing another these five elections in terms of sect Determination of this Court...
We then made it clear that:
"There is no objection to the 1st Re 22(6) while judgement has been res
That failure was more serious because duri the term of office of the Provincial Coun come to an end, and that the nomination p has now been fixed for 25.1.99, following - state - "the normal procedure in terms of tl election will take place first in respect of tł after the other five, although a new date of Citizens resident in the five Provinces are those of the North - Western Province, in i
The Respondents have attempted to disc failure to hold the elections to those fi submissions filed on their behalf clain
misconceived in law for the reason that the [the impugned Proclamation and Regulat function of the Commissioner of Electi Regulation compelled the 1st Respondent' and that any action by the Respondents cont be dangerous and expose the people and so, it is urged, "the Respondent' action in thereby giving effect to [-the impugned infringe upon the fundamental rights of th

ould have been obliged, thereafter, to Imstances changed. Here, the 1st Reor at any subsequent stage, whether he
assumed that he was bound to refran lding Provincial Council elections. He lespite the Determination of this Court 12.98, when judgment was reserved in
e would discuss with the 1st Respondent late for the taking of a poll in respect of ion 22(6)................... in the light of the ... made on 30.11.98."
spondent taking 'steps under section
served."
ng the oral argument Counsel stated that cil of the North-Western Province had rocess was under way. The date of poll as the Respondents' written submissions he existing law". The result is that an nat council, dissolved nearly six months poll has not even been fixed for the latter.
thus being less favourably treated than respect of their right to vote,
Elaim responsibility for the continuing ve Provincial Councils. The written a thar"the Petitioners application is eir main challenge which is in respect of cion, which are totally unrelated to the ons". It is argued that the impugned "to refrain from taking any further steps”, rary to the impugned Regulation “would the voters to unnecessary risks". And a not proceeding with the election and Proclamation and Regulation] cannot e Petitioners”.

Page 92
That plea is misconceived both in law entrusted by Article 104 with powers, d and has been given guarantees of indej
may ensure that elections are conducte to be wrongfully or improperly cancelle or otherwise. He was not entitled to a valid; and even if it was valid it was hi section 22(6), to have fixed a new date o fair poll would have been possible.
Further, the undisputed facts establish independently. The learned Solicitor - provision justifying the "suspension" before the impugned Regulation was m. explanation for that suspension. It was t fide. They do not claim, and it is inco "that the 2nd to 13th Respondents simul postal ballot papers on the eve of the im that suspension was with the full knowl The irresistible inference is that the Re pending Proclamation and Regulation. the 1st Respondent's official files and do communications, between him and officers, leading up to that suspension, a of that suspension; and there would ha that material. However, the Respondents relating to that suspension, and that fail decision was for a collateral purpose. TI indicates what that collateral purpose p papers had taken place on 4.8.98, voter could have proceeded to cast their vote: I in that way, substitution of candidates in t the drastic step of cancelling ballot pape cast. That would have been a seriou The suspension of the issue facilitated the subsequent substitution any part of the voting process, and it see that suspension.
That suspension had two unsatisfactory

and in fact. The Commissioner has been uties and functions pertaining to elections, pendence by Article 103, in order that he d according to law: not to allow elections ed or suspended, or disrupted, by violence ssume that the impugned Regulation was s duty, in the exercise of his power under on which - in his best judgment - a free and
that the 1st Respondent was not acting General was unable to cite any statutory of the issue of postal ballot papers even ade. The Respondents have not given any Cherefore unlawful, arbitrary and not bona nceivable, that it was a mere coincidence itaneously decided to suspend the issue of pugned Regulation; and there is no doubt edge and approval of the 1st Respondent. -spondents had foreknowledge of the im
Had that decision been made bona fide, cuments would have contained the official "outsiders", and between him and his is well as his reasoned decision in respect ve been a full and frank disclosure of all s have failed to produce a single document ire gives rise to a grave suspicion that the hat is not speculation. Clause 3 of the Bill robably was. If the issue of postal ballot s would have received ballot papers and f the postal voting process had commenced he nomination papers would have required rs already issued, and postal votes already s interference with a pending election.
of postal ballots would have of candidates without the need to cancel ems probable that that was the purpose of
consequences. If the postal ballot papers
B8

Page 93
had been issued, postal voting could have any fear of disruption: as postal voting di the kind of security needed at polling t Regulation had ceased to be operative - a to approve the Proclamation, or if H.E. tt - the poll could have taken place on 28 voting process virtually ensured that the p Respondents were thus indirectly and take the poll on 28.8.98. Secondly, the 1 date, in terms of section 22(6), with four suspension of the postal voting process, it b to fix such an early date he had to allo process to commence afresh. Thus that su ponement of the original poll, and also Respondent's discretion, compelling him new date of poll.
The 1st Respondent therefore was at least the poll on 28.8.98; and was wholly resp new date, on and after 28.8.98, after that
I must now consider whether the condu infringement of the Petitioners' fundame their behalf. first, that there was an inte Article 4(e); that although Article 4(e) does elections, that was because Provincial Cou by the Thirteenth Amendment; and that it Provincial Council elections as well. Th that by the Thirteenth Amendment Parl Council elections, if it wished to, and thi and that in any event a violation of Arti violation of a fundamental right. It is uni my findings in relation to Articles 12(1) a
Learned Counsel for the Petitioner form of "speech and expression" which Solicitor-General urged however, that t franchise and fundamental rights; that "t| fundamental right as contained in Chaptı under the American Constitution because which convert the right to vote as a funda

taken place, on and after 4.8.98, without d not require public polling booths and ooths. Consequently, if the impugned s, for instance, if Parliament had refused le President had revoked the Regulation .8.98. But the suspension of the postal oll would not take place on that day. The partially responsible, for the failure to
st Respondent had power to fix a new teen days' notice. But as a result of the ecame impossible for the 1 st Respondent w additional time for the postal voting spension virtually compelled the postplaced an unnecessary fetter on the 1st to give at least five weeks' notice of any
· partly responsible for the failure to take onsible for the failure promptly to fix a Regulation had spent its force.
ct of the 1st Respondent resulted in an ental rights. Learned Counsel urged on rference with the franchise, contrary to s not expressly refer to Provincial Council encils were introduced only subsequently, t must now be interpreted as applying to
e learned Solicitor - General contended Gament could have included Provincial at the omission to do so was deliberate; cle 4(e) may not, by itself, amount to a necessary to rule on this issue in view of
nd 14(1) (a).
Os submitted that the right to vote is one Article 14(1) (a) protects. The learned here is a clear distinction between the ne franchise cannot be incorporated as a er III"; and that the position is different "specific provisions are contained therein
mental right".

Page 94
When Article 14(1) (a) entrenches th guarantees all forms of speech and expre Article on the basis that, according to "expression" means "Y" and therefore "Y". Concepts such as "equality befo law", and "freedom of speech and expr in a statement of Constitutionally ent broadly interpreted in the light of fund Rule of Law which are the bedrock of th
I find it unnecessary to refer to the vari the matter admits of no doubt. A Prov between two or more sets of candidate right to choose between such candidat must select those who are to govern - therefore express his opinion about office, and their suitability, for office such opinions, as, for instance, that i candidates was so bad that they ought deserved re-election- whether express or to other voters - would clearly expression"; and there is also no dout many. forms besides the verbal. But voter to be able to speak out in that wa into office or throw them out of office even to convince other voters. In cont a voter may give expression to his viev family, is by silently marking his ba booth. The silent and secret expression candidate and another by casting h freedom of speech, and expressio from a political platform. To the very foundations of the Const and registered voters, and the 1st F grossly unjustified delay in the exer of Article 14(1) (a).
Turning to Article 12(1), the Petitioners poll on 28.8.98 and the failure to fix a before the law, and of the equal protecti Provinces, vis-a-vis 'voters in other Pro when the: impugned Regulation came

e freedom of speech and expression, it ession. One cannot define the ambit of that the dictionary, "speech" means "X" and "speech and expression" equals "X" plus ore the law", "the equal protection of the ression, including publication", occurring crenched fundamental rights, have to be amental principles of democracy and the e Constitution.
ous authorities cited, because in my view ancial Council election involves a contest es contesting for office. A voter has the tes, because in a democracy it is he who - or rather, to serve - him. A voter can
candidates, their past performance in in the future. The verbal expression of the performance in office of one set of E not to be re-elected, or that another set ed directly to the candidates themselves,
be within the scope of "speech and pt that "speech and expression" can take
although it is important for the average iy, that will not directly bring candidates e; and he may not be persuasive enough crast, the most effective manner in which vs, with minimum risk to himself and his llot paper in the secrecy of the polling n of a citizen's preference as between one is vote is, no. less, an exercise, of the on, than the most eloquent speech - hold otherwise is to undermine itution. The Petitioners are citizens Respondent's conduct has resulted in a cise of their right to vote, in violation
'contention was that the failure to take the
new date resulted in a denial of equality on of the law, to voters in the five affected ovinces. The Respondents reply was that into operation the only elections that were

Page 95
to be held were for those five Councils; tha that therefore the postponement of the pol the same class equally and without d "presently, [the] date for election has been which is not referred to in [the impugned E the normal procedure in terms of the existir
Two distinct issues are involved; first, v valid and the 1st Respondent acted pro elections on 28.8.98 (which I will consid whether the 1st Respondent's conduct, i voting and in failing to fix a new date, w before the impugned Regulation was made probably authorized, the suspension of th unlawful, arbitrary and not bona fide; tł impugned Proclamation and Regulation y collateral purpose; and he thereby placed a section 22(6). Upon the impugned Regul had power to act under section 22(6) - wh but failed even to consider whether he ha that power even after 28.8.98 (when the R despite the decision and observations of evident that elections would take place in elections in the other five Provinces, thi Provinces the protection of the law, by discharge the powers, duties and functions the. Act, and treating them less favorab Province. Article 12(1) has been infringed.
The 1st Respondent's aforesaid conduct in was neither authorized nor justified by any of the restrictions permitted by Articl restrictions on the freedom of speech only emergency regulation), and Article 15(7 equality and the freedom of speech if p regulations, "in the interests of national seo public health, or for the purpose of securi rights and freedoms of others, or of meeti welfare of a democratic society". The authorized by any "law", and so Article authorized by any emergency regulation, ai

ag law".
at no other Councils were involved; and - affected all the Councils which were in liscrimination. They conceded that a fixed in relation to sanother] Province Regulation] This process has followed
' ';
: : : : : whether the impugned Regulation was perly in not taking steps to hold the er later in this judgment), and second, n permitting the suspension of postal was in violation of Article 12(1). Even e, the 1st Respondent acquiesced in, arid e issue of postal ballot papers; that was aat was done with knowledge that the would be made the next day, and for a - fetter on his discretionary power under lation being made, the 1st Respondent ether that Regulation was valid or not - 1 such power, and he failed to exercise Legulation had ceased to be applicable),
this Court and even when it became the North-Western Province before the us -denying to the voters in those five
his failure to exercise, perform and reposed in him by the Constitution and ply than voters in the North-Western
violation of Articles 12(1) and 14(1) (a) legal provision falling within the ambit e 15. Article 15(2) permits certain y if prescribed by "law" (not including F) permits restrictions on the right to prescribed by "law" or by emergency curity, public order and the protection of ng due recognition and respect for the ng the just requirements of the general = 1 st Respondent's conduct was not = 15(2) was inapplicable. It was not nd so Article 15(7).was inapplicable.

Page 96
Learned Counsel for the Petitioners st Proclamation as well as the Regulati Proclamation had been made for the sole that no other Emergency Regulation had proved that it had been issued only to were part of one scheme, to postpone th by the failure of the Respondents to p Proclamation and the Regulation has connected with considerations of nation
In his affidavit, the 1st Respondent ple: not be questioned by virtue of the PSC submitted that since H.E. the Presiden Article 35, and since the Petitioners persons who could answer the allegation Proclamation and Regulation, this pertaining to their validity, In any event have affected national security.
The making of the Proclamation and the Respondents in relation to the five action", and this Court would ordinarily question is whether that jurisdiction is failure to join necessary parties, or any re
. : : : :
The immunity conferred by Ar perpetual. --While Article 35(1) aj continuation of legal proceedings all acts and omissions (official a immunity in respect of the acts there First, it completely removes immu acts. (by permitting, the institu President personally); and Presidential immunity in respect of that proceedings be instituted
What is prohibited is the instituti against the President. Article 35 does proceedings against any other person, v law. It is also relevant that immunit holds office as President". It is a nece immediately thereafter; indeed, it would for private acts were to continue. Any 1
9

crenuously contended that the impugned on were ultra vires. He urged that the e purpose of postponing elections; the fact I been made pursuant to that Proclamation enable that Regulation to be made; both ese five elections, and that was confirmed roduce any material suggesting that the d been made for any lawful purpose, al security or public order.
aded that the impugned Regulation could D. The learned Solicitor-General further t could not be made a party by virtue of had not cited as respondents any other as pertaining to the vires of the impugned Court should make no pronouncement , he urged, the holding of elections could
- Regulation, as well as the conduct of the elections, clearly constitute "executive have Jurisdiction under Article 126. The s ousted by reason of Article 35, or the elevant ouster clause.
ticle 35 is neither absolute nor ppears to prohibit the institution or against the President, in respect of nd private), Article 35(3) excludes in described. It does so in two ways. inity in respect of one category of tion of proceedings against the second, it partially removes another category of acts, but requires
against the Attorney-General. on (or continuation) of proceedings not purport to prohibit the institution of vhere that is permissible under any other y endures only "while_any person ssary consequence that immunity ceases be anomalous in the extreme if immunity ingering doubt about that is completely
2

Page 97
removed by Article 35(2), which exclude whether any proceeding have been brou need for such exclusion arises only becau continued thereafter. If immunity protec unnecessary to provide how prescription
Ihold that Article 35 only prohibits the proceedings against the President while in proceedings (a) against him when he is n. at any time. That is a consequence of the shield for the doer, not for the act. Ver intended to exclude legal proceedings w therefore, neither transforms an unlawfu
which shall not be questioned in any Cou the lawfulness or propriety of an imp proceedings against some other person i as, for instance, a defendant or a respo President, in order to justify his own con has entertained and decided questions in by the President (see Joseph Perera
Wickremabandu y Herath, [1990] 2 S appointments (see Silva v BandaranaRespondents who rely on the Proclamati of by this Court is not in any way inconsis the institution of proceedings against the
As for the alleged failure to join the "pro General submitted that the Petitioners sł the "Defence establishment" respondent necessary material on the basis of which
made; and the Respondents "could neve: on matters of public security".
In fundamental rights applications, Attorney-General) are those who are al rights; not persons who may be able to giv in such applications, as in other legal pro who are no more than witnesses. Here th to hold the elections on 28.8.98 and 1 infringement was by the 1st Respondent an

's such period of office, when calculating ght within the prescriptive period. The ise legal proceedings can be instituted'or ted a President even out of office, it was was to be reckoned.
: institution (or continuation) of legal noffice; it imposes no bar whatsoever on o longer in office, and (b) other persons 2 very nature of immunity; immunity is a ry different language is used when it is hich seek to impugn the act. Article 35, 1 act into a lawful one, nor renders it one rt. It does not exclude judicial review of ugned act or omission, in appropriate who does not enjoy immunity from suit; ndent who relies on an act done by the duct. It is for that reason that this Court relation to emergency regulations made v A.G., [1992] 1 Sri LR 199, 230; ri LR 348, 361 374) and Presidential yake, [1997] 1 Sri LR92). It is the Lon and Regulation, and the review there stent with the prohibition in Article 35 on President.
pper" respondents, the learned Solicitorhould have made responsible officers of s, because they alone could produce the a the Proclamation and Regulation were r have placed any material before Court
the proper respondents (beside the leged to have infringed the petitioner's e relevant evidence. It would be improper ceedings, to join as respondents persons e Petitioners' real complaint is the failure to fix a new date in lieu, the alleged nd the returning officers, and the Supreme

Page 98
Court Rules did not require any 01 Proclamation and Regulation were th case, but to the Respondents' defenc therefore on them to produce evidence : wished to. It would have been improp respondent for the sole purpose of for important, to support their own case-ev party. How then can they be under an "Defence establishment" a responden evidence in support of the Respondents
I must mention that the Respondents' public security aspects of the Proclam when the impugned Regulation was m why it was made, and that he failed or ( the lack of any information suggesting agree that it was theoretically possibl affected nåtional security - for instan personnel had to be withdrawn from th security for the elections, that might ! areas - yet the Inspector-General of Poli Respondent did not have any material place at any time thereafter.
I am therefore of the view that neither A from the "Defence establishment" is a ba
However, the question whether t Proclamation and the Regulation did ar of the oral argument that reference was 1 the jurisdiction of this Court in regard to of a full argument, I am reluctant to rule the impugned Regulation was invalid, th considering the vires of the Proclamat Counsel for the Petitioners submitt Proclamation in its entirety, but only additional to those to which the previou further question-whether the Proclama did not have the benefit of assistance fro:
The learned Solicitor-General relie

ne else to be made respondents. The erefore relevant, not to the Petitioners' e of justification, and the burden was From the "Defence establishment" if they er for the Petitioners to join a person as cing him to produce evidence, however en an essential witness is not a necessary y obligation to make someone from the t, in order to compel him to produce
plea that they had no knowledge of the ation and the Regulation confirms that ade the 1st Respondent did not inquire declined to fix a new date of poll despite an adverse security situation. While I e for the holding of elections to have ce, if a significant number of security e "operational areas" in order to provide nave affected national security in those ce did not think so on 25.6.98, and the 1st suggesting that any change had taken
rticle 35 nor the failure to join an officer ir to this application.
his Court had jurisdiction to review the ise. It was only towards the conclusion nade to Article 154J(2), which may oust » the Proclamation. Without the benefit on that matter. As I am of the view that e application can be disposed of without ion. I must also mention that learned :d that he was not challenging the
in regard to its application to areas ;Proclamation applied. That involves a ion was severable - and on that too we n Counsel.
don section 8 of the PSO, which provides

Page 99
that "no emergency regulation........... shall ousting the jurisdiction of the Courts to rev 155(2) imposes a Constitutional limitatic regulations: they cannot have the legal suspending the operation of any provisions the jurisdiction of this Court to revie consequence would be that even a regulatio and Article 155(2) would be nugatory. Hov similar legislation, that would have been Article 121. If section 8 ousts the jurisd Parliament cannot do by legislation, can n regulation made in the exercise of delegate not keep in force prior enactments where otherwise. The Constitution has made su several jurisdictions of this Court (see Wick PSO is therefore subject to such express pr the jurisdiction of this Court under Article validity of the impugned regulation.
Article 76(2) permits Parliament to make, i provision empowering the President to mal deems the PSO to be a law enacted by F authorizes the President to make emergen necessary or expedient in the interests of f public order and the suppression of mutiny maintenance of supplies and services ess Section 5 is thus a provision for the deleg emergency (see Weerasinghe,Samarasingh regulations are delegated legislation. An e in form legislative, rather than executive or order or a decision. If it was considered n under section 22 of the Act, there should fi: delegated legislation) conferring power, ir suspend notices already issued under secti been an exercise of that power, in relation regulation could not have been absolute a guidelines (i.e. "national security-oriented judicial review would have been possib regulation itself was intra vires and secon exercise of power, in keeping with the crite As Sharvananda, CJ, in Joseph Perera's case

be called in question in any court", as iew the impugned Regulation. Article on on the power to make emergency
effect of over-riding, amending or s of the Constitution. If section 8 ousts
w emergency regulations, then the on violative of the Constitution is valid: vever, if Parliament had sought to enact subject to review by this Court under diction of this Court, then that which nevertheless be done by an emergency
legislative power! Article 168(1) did e the Constitution expressly provided uch express provision by entrenching remabandu, at 361) and section 8 of the rovision. I hold that, in the exercise of 126, this Court has power to review the
n any law relating to national security, ke emergency regulations. Article 155 Parliament, and section 5 of the PSO cy regulations "as appear to him to be public security and the preservation of F, ..riot and civil commotion, or for the ential to the life of the community". ation of legislative power 'in a public 2,(1966) 68 NLR 361), and emergency
mergency regulation must therefore be judicial; it must be a rule, rather than an. ecessary to suspend the notices issued rst have been enacted a regulation (i.e. a general terms, on some authority to on 22, and then only could there have to particular instances. Further, such nd unfettered, but relevant criteria or ' criteria) were necessary. Thereupon le at two stages: first, whether the ad, whether the act done was a proper eria or guidelines and for valid reasons

Page 100
"Regulation 28 violates Article 1: equality before the law and strikes State exercises any power, statut unfairly between one person and regulation on any authority of th standard or principles are laid do the exercise of such power , the re, provision because it would permit which is the antithesis of equality ! official with unguided and arbitra Yick Wo v Hopkins. Regulation : the Police to grant or refuse permis pleases, in exercise of its absolute guiding principle or policy to co discretion. There is no mention in application for permission may be power is in violation of the constit and is void."
Sharvananda, CJ, was dealing with an confer a power on an official, and he h purported to confer a power which was exercised arbitrarily and capriciously. purport to confer a power (to suspend sta of the. Act): it does not specify the crit purports to suspend such notices withou
I hold that the impugned Regulation is r 5. of the PSO. It is not an emergency reg order purporting to suspend notices law in force, then or later, any legal provisio suspending such notices.
But in any event, even treating the impi
made under a valid emergency regulat under section 22 could have been sus purposes set out in section 5 of the PSO facie, that from 25.6.98 up to the end o national security, public order, etc...... elections. The Respondents have failed

2 of the Constitution. The Article ensures - at discriminatory State action. Where the ory or otherwise it must not discriminate another. If the power conferred by any e State is vague and unconfined and no vn by the regulations to guide and control gulation would be violative of the equality
arbitrary and capricious exercise of power before law. No regulation should clothe an ery powers enabling him to discriminate - 28 confers a naked and arbitrary power on -sion to distribute pamphlets or posters as it e and uncontrolled discretion, without any ontrol and regulate the exercise of such - the regulation of the reasons for which an
refused. The conferment of this arbitrary utional mandate of equality before the law
emergency regulation which purported to eld the regulation to be invalid because it vague and unconfined, and which could be
Here the impugned Regulation does not itutory notices of election under section 22 ceria for the exercise of the power: and it tany stated reason.
not a valid exercise of power under section gulation. It has, rather, the character of an fully issued under the Act. There was not n which authorized the making of an order
igned regulation as if it had been an order ion, the suspension of the notices issued tained only if it had been for one of the . The Petitioners have established(prima if July 1998 there was no known threat to which warranted the postponement of the to adduce any material whatever which
36

Page 101
suggests that, in August 1998, there w suspension of the notices by means of the unreasonable. That suspension infringed under Articles 12(1) and 14 (1) (a), for the
Should the 1st Respondent have insisted o I appreciate the difficult situation in whi remember that the Constitution assure fearlessly insist on due compliance with tl - even, if necessary, by instituting approp judicial orders. But the material availabl effort to ascertain the legal position, or tol
I grant the Petitioners declarations that th their fundamental rights under Articles 12 issue of postal ballots, thereby contributi that the 1st Respondent has infringed thei and 14(1) (a) by failing to take steps to e Provincial Council elections, on 28.8.98, a
I direct the 1st Respondent to take immed today, in respect of all sive elections (a) weeks from today, for the issue of postal of poll, not later than three months from to
The Petitioners have not prayed for costs in a sum of Rs. 30,000/- payable by t}
JUDGE O
G.P.S. DE SILVA, CI:
I agree.
GUNASEKERA, J:
9.

was any such threat. Accordingly, the e impugned Regulation was arbitrary and the fundamental rights of the Petitioners reasons already stated.
-n the poll being held on 28.8.98 ? While ch he was nevertheless it is necessary to es him independence, so that he may he law in regard to all aspects of elections riate legal proceedings in order to obtain Le to this Court indicates that he made no have recourse to legal remedies.
e 1st to 13th Respondents have infringed 2(1) and 14(1) (a) by the suspension of the ing to the postponement of the poll; and r fundamental rights under Articles 12(1) nable the taking of the poll, for the five and by failing to fix a new date of poll.
iate action to fix, within two weeks from a new date or dates, not later than four pallot papers, and (b) a new date or dates day.
compensation. They will be entitled to ne State.
OF THE SUPREME COURT
+ + + + + + +
I +
CHIEF JUSTICE

Page 102
I agree.
JUDGE OF T
AT:
98

HE SUPREME COURT

Page 103
Supreme Court of the Democratic s
Colomb
AN ACT TO MAKE PRO COMMISSIONER OF ELECTIOI POLL FOR WESTERN, UVA, SAB NORTH CENTRAL PROVINCI
In
Art
SC Special Determination
No 9/98 (SD).
Jan 198 Col
Pet
SC Special Determination
No 10/98 (SD)
265 Mii
Nu
SCSpecial Determination
No 11/98 (SD)
Att
257
Ko
SC Special Determination
No 12/98 (SD)
Era 176
Mo

ANNEX IV (iv)
Socialist. Republic of Sri Lanka. o 12.
VISION ENABLING THE NS TO FIX A NEW DATE OF ARAGAMUWA, CENTRAL AND AL COUNCILS ELECTIONS
the matter of petitions under icle 121 of the Constitution
atha Vimukthi Peramuna, 3/9, Panchikawatte Road,
ambo 10.
Petitioner
higama Kuruwitage Piyasena Perera, S/B, Thalawathugoda Road, rihana, Kotte.
Pétitioner
wan Kodikara, orney - at - Law, ", High Level Road, ttawa.
Petitioner
ntha Priya Sudesh de Silva, -, Pothuwil Road, neragala.
Petitioner

Page 104
SC Special Determination No 13198 (SD)
SC Special Determination
No 14/98 (SD).
A G .
BEFORE:
Fernando, J, Guriawardana, J, and Weerasekera, J
COUNSEL.
R.K.W. Goonaseker for the Petitioner in A.A. de Silva, PC, Nihal Senaratne and Dissanayaka for the Shibley Aziz, PC, w A.P. Niles, Miss Pri Miss Nazly Buhari f A.S.M. Perera with and Mrs Shaheeda ) for the Petitioners ir K.C. Kamalasabays A. Gnanadasan, SS for the Attomey-Ge

Wijekoon Mudiyanselage Tikiri Banda, "Wijaya", Wewewatta, Palugama, Keppetipola.
Petitioner
Gunamuni Halowitage Sumanawathi, Idangoda, Kiriella.
Petitioner
-VSThe Attorney - General, Attorney-General's Department, Colombo.
Respondent
a with J.C. Weliamuna SD 9/98; vith Tissa Yapa, Piyasena Dissanayaka, I Mahanama
Petitioner in SD 10/98; ith V. Wimalachandran, yanthi Gooneratne and
or the Petitioner in SD 11/98; Gamini Senanayake Barrie
SD 12-14/98; on, PC, SG, with C, and M. Gopallawa, SC, neral.
00

Page 105
DETERMINATION:
Six petitions were filed, on 10. 11.98 and 11 Bill entitled "Provincial Councils Electic make provision enabling the Commissio for Western, Uva, Sabaragamuwa, Centra Elections") were inconsistent with Artic Constitution. The petitions were taken u
BACKGROUND
The five-year terms of office of five Prov months ago. After the conclusion of the r Councils (in terms of Part II of the Pro 1988) the returning officers of the sev published notices, all dated 15.7.98, unde August 1998 as the date of poll for the ser Provinces.
On 4.8.98. H.E. the President issued a Pr Security Ordinance, bringing the provis operation throughout Sri Lanka, and made
For so long, and so long only, as Pa in operation in a Province for which 1 of the Schedule hereto has bee under section 22 of the Provincia published in the Gazette specified of the Schedule hereto, as relate: elections to such Provincial Counc of no effect." [emphasis added thr
Counsel informed us that similar Proclɛ thereafter. The Regulation did not purpor section 22(1), but only to suspend their c Part II of the Public Security Ordinar Further, that suspension was not of the no which related to the date of poll. Acc

.11.98, alleging that clauses 2 and 3 of the n (Special Provisions) Bill" ("An Act to mer of Elections to fix a new Date of Poll il and North Central Provincial Councils les 3,4,12,154A (2) and 154Q(a) of the » for consideration together on 16.11.98.
incial Councils came to an end about six homination process for elections to those vincial Councils Elections Act, No 2 of veral adminstrative districts concerned r section 22(1) of the Act, specifying 28th veral administrative districts of those five
oclamation, under section 2 of the Public sions of Part II of that Ordinance into the following Regulation under section 5:
art II of the Public Security Ordinance is
a Provincial Council specified in Column en established, such part of the Notice ! Councils Elections Act, No.2 of 1988, in the corresponding entry in Column 11 s to the date of poll for the holding of il shall be deemed, for all purposes, to be bughout]
mations have been issued every month - to cancel or invalidate the notices under peration; and that, too, “so long only as ce is in operation in (the) Province". cices in their entirety, but only of that part ordingly, the rest of each notice, and

Page 106
especially that part which related to the the symbols, etc) remained valid and op
The poll was not taken on 28th August this Determination, to ascertain whether 2 óf 1988, makes provision for fixing an Actiprovides: 1
". . . . : "(6) Where at an election of m
administrative districts within Council is established, due to an the poll in any such administra specified in the notice published [of Elections] may, by notice, p day for the taking of the poll in other administrative district wit day, not earlier than the fourteent [the] Gazette.”
. -
If for any reason, which falls within th circumstances", the poll cannot be tak officer under section 22(1), section 22 appoint another day. It is clear that he r or on or after the appointed day; for in spread floods (or a serious epidemic) m held on that day, or if on that day, any' prevent the taking of the poll. Here, on an Emergency Regulation purporting to 22 in relation to the date of poll. If the before 28.8.98 (in all five Provinces revocation, or disapproval by Parliame notices would once again have becom could have been taken on 28. 8. 98. proclamation continued to be operative: & As far as the Commissioner was con (whether the Regulation was valid or n the due date because of "emergency or i
was therefore applicable. He had there the poll. And if he had done so, a poll w notice which he then issued under seo
. : : *
N
::.

nominations (the names of the candidates, perative.
t 1998. It is necessary, for the purpose of - the Provincial Councils Elections Act, No other day for the poll. Section 22(6) of the
embers of a Provincial Council from the the Province for which that Provincial y emergency or unforeseen circumstances tive district cannot be taken on the day I under subsection (1), the Commissioner ublished in the Gazette, appoint another such administrative district and in every nin that Province, such other day being a h day after the publication of the notice in
e ambit of "any emergency or unforeseen en on the day specified by the returning 16) gives the Commissioner the power to may do so either before the appointed day, stance, if one week before that day widetake it evident that a proper poll cannot be 'emergency or unforeseen circumstances"
4.8.98, the Commissioner was faced with ) suspend the notices issued under section : Proclamation had ceased to be operative or even in one Province) - by virtue of ht, or otherwise - then some or all of those le unquestionably operative and the poll But that did not happen, and ex facie the nd so the poll was not taken on the due date. cerned, on and after 28.8.98 the position ɔt) was that the poll had not been taken on inforeseen circumstances". Section 22(6) fore the power to appoint another day for ould have been taken on the basis of (i) the tion 22(6), which notice could not have
02

Page 107
been affected in any way by the Emergen and (ii) the nominations already publishe issued by the returning officers on 15.7.9 had not touched.
Although section 22(6) provided that th day, thereby conferring a discretion, it is that was not a pure discretion but a power the purpose of this Determination that it w to fix another date.
While the Commissioner had the power exercised that power.
Counsel informed us that the validity of been challenged in other proceedings n Court of Appeal.
That is the background in which the impu of Parliament on 4.11.98.
PROVISIONS OF THE BILL
The Bill is as follows:
AN ACT TO MAKE PROV SIONER OF ELECTIONS TO WESTERN, UVA, SABARA CENTRAL PROVINCIAL C
WHEREAS nomination papers ern, Uva, Sabaragamuwa, Cen cils, in response to a Notice pub Councils Election Act, No. 2 of indicating his intention to holds
AND WHEREAS by Notices pu Councils Elections Act, No.2 of the date of poll for such electio

cy Regulation previously made on 4.8.98, d in the "nominations" part of the notices -8, which part'the Emergency Regulation
e Commissioner "may" appoint another arguable that, in the context of elections, - coupled with a duty. But it is enough for was the Commissioner who had the power
Wer
to fix another date, up to now he has not
the Proclamation and the Regulation has ow ending both in this Court and in the
agned Bill was placed on the Order Paper
FISION ENABLING THE COMMISD FIX A NEW DATE OF POLL FOR GAMUWA, CENTRAL AND NORTH OUNCILS ELECTIONS
were submitted for elections to the Westtral and North Central Provincial Counolished under section 10 of the Provincial
1988, by the Commissioner of Elections, such elections; . . . ; .
". . . . . . iblished under section 22,of the Provincial E 1988, August 28, 1998was specified as
ns; . : : ... n.
i i: ... in
E". : : : : : .

Page 108
AND WHEREAS by regulat Security Ordinance, and publi 1998, the date so specifie
AND WHEREAS it has nov enabling the Commissioner o such elections:
Now, therefore, be it enactec Socialist Republic of Sri Lanka
1. This Act may be cited as th Provisions) Act, No.
2. (1) The Commissioner the date of commencement of the Gazette and having regard (c) of the Provincial Councils poll for elections to every Prov Schedule to this Act, in lieu o published under section 22 of No. 2 of 1988, in respect of su the Gazette set out in the coi Schedule to this Act; and the Elections Act, No. 2 of 1988 re a poll taken in complianc
: (2) The validity of a p subsecion (1) shall be deemed fact that the date so appointed from the date of publication of
3. (1) The Secretary of a rei of an Independent group who election to a Provincial Counc this Act, in respect of an Ad Returning Officer of such Adn the date of commencement of candidate appearing in such i candidate (in this section candidate").

cion made under section 5' of the Public Eshed in Gazette No. 1039/5 of August 4, d was declared to be of no effect:
v become necessary to make provision f Elections to fix a new date of poll for
d by the Parliament of the Democratic a as follows:-
e Provincial Councils Elections (Special
998.
of Elections shall, within four weeks of this Act, appoint, by Notice published in - to the periods specified in section 22(1) s Elections Act, No. 2 of 1988, a date of vincial Council set out in column 1 of the f the date of poll specified in the Notice f the Provincial Councils Elections Act, ach Provincial Council, and published in rresponding entry in Column 11 of the e provisions of the Provincial Councils lating to the taking of a poll shall apply to -e with the first mentioned Notice.
poll taken on the date appointed under
not to be affected by reason only of the - waș after the expiration of eight weeks - the second mentioned Notice.
cognized political party or the group leader o has submitted a nomination paper for il set out in column 1 of the Schedule to
ministrative District, may apply to the ministrative District, within two weeks of this Act. to substitute for the name of a nomination paper, the name of another n referred to as "the substituted

Page 109
(2) : Every applicatio accompanied by the written co oath or affirmation, as the case Schedule to the Constitution, ta by the substituted candidate.
(3) On recipt of an app! by the documents referred to i shall substitute in the relevai substituted candidate in place application, and the name of th to have been included in the recognized political party or In District and the name of the ot purposes, to be valid and effec not been endorsed by the subst other candidates are not in alph
(4) After the substitution o submitted by a recognized politi of an Administrative District as Officer for such Administrative under section 22 of the Provinci in respect of such Administra the name specified in such Not candidate therefrom.
4. In the event of any incon texts of this Act, the Sinhala ter
The Schedule sets out the names of the fi and the dates of the Gazettes in which published.
CLAUSE 2 OF THE BILL
All the Petitioners, with the exc challenged the validity of clause 2 on vari categories.

A . . . .
{}
n made under subsection (1) shall be nsent of the substituted candidate and an may be, in the form set out in the Seventh aken and subscribed, as the case may be,
lication under subsection (1), accompanied n subsection (2), the Returning Officer nt nomination paper, the name of the of the other candidate referred to in the Le substituted candidate shall be deemed
nomination paper submitted by such dependent group for such Administrative her candidate omitted therefrom, for all ctual notwithstanding the fact that it has ituted candidate or that the names of the habetical order.
-f [a] candidate in a nomination paper ical party or independent group in respect provided for in this section, the Returning District shall cause the Notice published al Councils Elections Act, No. 2 of 1988, tive District to be amended, including cice, and omitting the name of the other
sistency between the Sinhala and Tamil 

Page 110
The Petitioners' first submission is that area which, constitutionally, is the exc Elections: the power and the discretion pending electoral process. It is more th power or process, because Article commissioner to "exercise", perform a functions as may be conferred or impos time being relating to elections to the written law"; and the Provincial Counci The power to fix a new date of poll is pr. and clause 2 seeks to interfere with 'commissioner to exercise his discretion vincial Council elections, past and been different if clause 2 had been a gei clause 2 does not purport to make a gen other provision of the Act; it is not prospe future elections as well as these five elections. The resulting position is tha elections, past and future, was and will dealt with under section 22(6); but clar and discretion to be exercised otherwise 22(6) only for these five elections - no take place during the same period. THE improper motive is alleged for this diffe had been allowed to fix a new date und proceeded on the basis of the nomination have been between the candidates alrea seeks to permit is a contest of a complete the Bill attempts to allow the substitutior against their will; and so the resulting pletely different candidates - a result w section 22(6). Further, if the Commissio tion under section 22(6), he might opt t notice, But that would not be sufficient substitution. Accordingly, the exclusio 22(6), and the stipulation of new time fr guise of giving the Commissioner the " the Bill attempts to permit a virtually ne five elections: ***
. . . . . . ; * ti. : : It was pointed out that the fourth prea

t the Bill is a legislative intrusion into an clusive preserve of the Commissioner of a to fix a new date of poll in respect of a an an interference with a purely statutory 104 of the Constitution requires the and discharge all such powers, duties and sed on or vested in him by the law for the office of President........ or by any other Is Elections Act is one such "written law". esently vested in him under section 22(6), that discretion it seeks to compel the
in a manner different to all other Pro- future. While the position might have neral provision, amending section 22(6), eral amendment to section 22(6) or to any ectively applicable to future elections, or to elections; but applies only to these five at the fixing of a new date of poll for all be a matter for the Commissioner, to be use 2 requires the Commissioner's power than in the manner prescribed by section t even for any other election which may nat is also violative of Article 12(1). An erence in treatment. If the Commissioner er section 22(6), the election would have ns already received, and the contest would dy on the respective lists. What clause 2 -ly different character. As clause 3 shows, nof new candidates, in place of old, even contest could well be one between comhich could not have been achieved under oner had been allowed to retain his discreo allow the minimum period of 14 days' E to accommodate the desired process of -n of the general discretion under section råmes became necessary. Thus, under the necessary" power to fix a new date of poll, w nomination process - and only for these
mbular clause of the Bill is misleading,
D6


Page 111
because it wrongly asserts that it is: "nec Commissioner to fix a new date of poll existing law makes adequate provision.
Not only is clause 2 inconsistent with Ar also interferes with the franchise, contrar does not mention elections to Provincia Councils were only introduced subsequent 4(e) must now be interpreted to cover Prov the franchise is not restricted to merely vo elections, and, indeed, the entire elect
It has also been submitted that, despite the original date of poll, the Bill has not bee thus no assuarance that it is intended t operation promptly thereafter, and that contrast, if the Commissioner is permitte of poll can be fixed with just 14 days' noti automatic dissolution of a Provincial Cou of office, no provision is made for a "ca implication of that, it is u
requires prompt elections: to hold otherw of power.
A second submission was that clause 2 Commissioner's discretion. While sectio different dates for the poll for differe circumstances - such as the availability of . considerations, and the like - require it, cl date be fixed for the elections to all five P of poll already specified). That is a furth.
The Petitioners' third main submission was i purports to legitimize the Emergency Reg presently under judicial review. It is for t was suggested, relying on R.v. Liyanage, (1965) 68 NLR 265, that the Bill is not a tru
meaning of Articles 4(a) and 75, and is processes and judicial proceedings, becaus law not intended for the generality of case
| 10

essary" to make provision enabling the there is no such necessity, beause the
3. ! 1 Pticles 12(1) and 104 as aforesaid, but it
y to Article 4 (e). Although that Article al Councils, that is because Provincial Ely by the Thirteenth Amendment: Article vincial Council elections as well. Further, oting at elections; it includes standing for ion process from nomination to poll.
e lapse of more than two months after the n classified as an "urgent". Bill: there is o be passed quickly and brought into would further delay the elections. By d to act under section 22(6), a new date ce. While Article 154E provides for the ncil upon the expiry of its five year term retaker" administration. The necessary rged, is that the Constitution vise would be to devalue the devolution
. . . . . . . .
. . . . . . was ambiguous as to the extent of the n 22(6) allows the Commissioner to fix nt Councils where in his opinion the staff, vehicles and equipment, or security ause 2 appears to require that one single Provincial Councils (in lieu of "the" date er interference with his discretion.
ri'
that the Bill, in its third preambular clause, ulation of 4.8.98, the validity of which is he Courts to determine that question. It (1962) 64 NLR 313, and Liyanage v R. se exercise of legislative power within the
and interference with pending electoral se the Bill contemplates alterations in the
s, or the improvement. , . . . . . . . . . . .


Page 112
of the general law, but limited to one pa situations to be governed by the pre-exi
It is unnecessary to examine the Petitio for the purpose of this Determination to
with Article 12(1) of the Constitution.
CLAUSE 3 OF THE BILL
Counsel for all the Petitioners submit Provincial Councils only, clause 3 permi .leader of an independent group to replac on the nomination paper and the notice and even without notice to him, alth Provincial Councils Elections Act doe even in case of death (of. section 23) or therefore inconsistent with Article the franchise.
it is unnecessary to refer to the various a such involuntary substitution, especia
Mr. Kamalasabayson did not contend tl Article 12(1), but submitted that what ha withdrawal of candidates who- discoura no longer wished to contest. Such an language of clause 3. Clause 3 plainly c group leader of an independent group remove a candidate from a valid nomina valid reason, and even without notice; i treatment of candidates standing for ele
DECISION
In the course of the oral submissions it a questions of inconsistency between c provisions of the Constitution particu Petitioners were agreed that delay in th Leaving aside clause 3, we inquired fro constitutionality of clause 2 would per deleted, and the third preambular clause

eticular situation, leaving all future similar
sting law.
ners' submissions in detail. It is sufficient o say that clause 2 is inconsistent, at least,
ted that, for the elections for these five itted the Secretary of a party and the group ce a candidate. Whose name was properly
under section 22(1), without his consent ough the general law contained in the s not permit replacement of a candidate withdrawal (of. section 116). Clause 3 is 12. as well as an interference with
nomalies and injustices which result from 1ly to members of independent groups. hat such substitution was consistent with ad really been intended was to permit the aged by the long delay in taking the poll - intention does not appear at all from the onfers on the Secretary of a party and the the power, arbitrarily or capriciously, to ation paper without his consent, without a t is a gross violation of the right to equal ction.
appeared to us that there were formidable lauses 2 and 3 of the Bill, and several larly Article 12(1). Counsel for all the e taking of the poll should be minimised. mCounsel whether their objections to the sist if the fourth preambular clause was - and clause 2 amended to read as follows:
VaS


Page 113
AND WHEREAS the said poll
2. (1) The Commissioner of I the date of commencement of th the Gazette and having regard t of the Provincial Councils Elect for the taking of the poll for elec in column I of the Sched date of poll specified in the N the Provincial Councils Election Provincial Council, and publ corresponding entry in Column he has, in the exercise of his pov Councils Election Act No.2 o the taking of the poll for such e Act relating to the taking of a poll with the first mentioned Notice.
(2) The validity of a poll taken (1) shall be deemed not to be a the date so appointed was after date of publication of the second
Such an amendment would acknowl Commissioner to fix a new date of poll leave him free to exercise that power. I cannot be held because he has failed to compelled to fix a new date under clause
with the franchise or the electoral proce which has occurred between nomination an any pending litigation.
Mr. Kamalasabayson stated that these am Bill would be amended accordingly.
We determine that clauses 2 and 3 of th Article 12(1) of the Constitution, and .
majority prescribed by Article 84(2). inconsistent if amended as suggested abo
10S

has not been taken.............
Slections shall, within four weeks of is Act, appoint, by Notice published in o the periods specified in section 22(1) ions Act, No.2 of 1988, a date or date tions to every Provincial Council setout lule to this Act, in lieu of the sotice published under section 22 of Is Act, No 2 of 1988, in respect of such ished in the Gazette set out in the
11 of the Schedule to this Act, unless rer under section 22(6) of the Provincial f 1988 appointed a date or dates for lections; and the provisions of the said shall apply to a poll taken in compliance
on a date appointed under subsection ffected by reason only of the fact that the expiration of eight weeks from the I mentioned Notice."
edge the undoubted power of the
under section 22(6) and continues to It is only in the event that an election exercise that power that he would be 2. It would then be, not an interference ss, but a, remedy for that interruption d poll; and further, it would not prejudice
endments were acceptable, and that the
e Bill are inconsistent with, interalia, can only be passed with the special
However, clause 2 will cease to be


Page 114
30th November 1998
M.D.H. JUDGE OF THE
A. de Z. GUN JUDGE OF THE
L.H.G. WEI JUDGE OF THE

Fernando SUPREME COURT
VAWARDANA SUPREME COURT
ERASEKERA SUPREME COURT


Page 115
IN THE SUPREME COURT OF T
REPUBLIC OF
S.C. Application FR No. 265/99
S T A P - N m t

ANNEX IV (v)
HE DEMOCRATIC SOCIALIST ' SRI LANKA
i the matter of an application under rticle 126 of the Constitution of the emocratic Socialist Republic of Sri anka.
Rohan Edrisingha, 2/3 A, Sri Maha Vihara Road, Dehiwala.
. Mohammed Razeen Hyder
Hassan, 403/3, Hospital Road, Dharga Town, Kalutara.
. Mrs. Dorothy Ursula Amerasinghe. 73/1, Havelock Road, Colombo 5.
- Ms. Manjula Sirimane,
52/3, Pujyasiri Darmarathne Mawatha,
Madiwala.
Petitioners
VS.
Dayananocer of Elepsiagiriya,
Dayananda Dissanayake, Commissioner of Elections, Elections Secretariat, Rajagiriya, Sri Jayawardenapura - Kotte. ..
S.R. Weerakoon, Returning Officer, Colombo District, District Secretariat, Colombo 12.


Page 116
Before
Fernando, J.
Wadugodapiti Weerasekera, .
Counsel
R.K.W. Goone J.C. Weliamun Sundari de Al
S. Marsoof
Respondents.
Argued on
* 17.3.99 & 23..
Decided in
: 23.3.99.

3. T. Hapangama.
Returning Officer, Gampaha District, District Secretariat, Gampaha.
1. A.I. Wickrema,
Returning Officer, Kalutara District, District Secretariat, Kalutara.
5. The Inspector General of Police,
Police Head Quarters, Colombo 1.
5. The Attorney - General,
Attorney - General's Department, Colombo 12.
Respondents
ya, J.
I.
esekera with L.R. Rajapakse, na, Mrs. Kishali Pinto Jayawardena, Miss
wis for Petitioners.
ASG with U. Egalahewa SC for
3.99.
12


Page 117
Fernando, J.
We have heard Mr. Goonesekera on behal
Mr. Marsoof submits that there is no ime rights of the petitioners, as alleged by them and instructions issued by the Commission of Police referring to a whole range of n free, equal and secret ballot. He undertak later than 24th March 1999 with copies te public will be entiled to obtain certified o
Mr. Goonesekera accepts that these docum the items in respect of which he has praye
1. He submits that the instructions giv a stern warning that swift and appropriate officers who are found to be in intentiona
2. He states that these documents do i the safety and freedom of voters (on their w agents, and, particularly, Polling Agents.
We also indicate to Mr. Marsoof that in ballot, a serious question arises as to the i provided by the State for political activit
Having regard to the action already taken the Inspector General of Police, as appe confidence that these three matters will a Commissioner of Elections and the Inspe
In view of what has transpired today, Mr. do not wish to proceed with this applicati scheduled for 6th April 1999.
The petition is therefore pro forma
Sgd./ JUDGE OF THE SUPREME
113

If of the petitioners.
ninent infringement of the fundamental 1. He refers to a series of letters, circulars er of Elections and the Inspector General natters conneced with the conduct of a ces to file a set of these documents not » Mr. Goonesekera; any member of the
opies.
ents make reasonable provision to cover ed for directions save in two respects.
ven by the I.G.P. ought to have included : action will be taken against any police 1 dereliction of their duties.
not make adequate provisions to ensure ray to and from Polling Booths) counting
the context of a free, equal and secret use of vehicles, personnel and weapons ies connected with elections.
by the Commissioner of Elections and earing from these documents, we have also be given due consideration by the ctor General of Police.
Goonesekera states that the petitioners Eon, particularly as elections have been
dismissed.
COURT.


Page 118
S.C.F.R. 265/99
Wadugodapitiya, J.
I agree.
Sgd./ JUDGE OF THE SUPREM
Weerasekara, J.
I agree.
Sgd./JUDGE OF THE SUPREME (
... iii:.. ***: : : : !. ....1, .
. . . . . . . . . } *** . . . . . . . . . . . . .
....: : ,

TE COURT.
COURT.


Page 119
Relevant Sect Elections (Special Provisi
Insertion of new section 46A in the principal enactment.
II I
13. The follo immediately a and shall have
"Disturbance. 46 A. ( at polling
of such stations
(a) it is n
polling commer
(6)
the poll the hour be conti the poll:
(C).. any of
station
the pres forthwit turn info
- (2). O .subsecti
electoral . such in certain publishe polling
(3) Whe subsecti electora
mutatis in such result of set out i
(4) The centret
115

ANNEX IV (vi)
sions of the ons) Act, No.35 of 1988
-wing new section is hereby inserted after section 46 of the principal enactment e effect as section 46A of that enactment:-
1) Where due to the occurence of events a nature -
ot possible to commence the poll at a E station at the hour fixed for the ncement of the poll; or
a at such polling station commences at - fixed for the opening of the poll but cannot nued until the hour fixed for the closing of
For
the ballot boxes assigned to the polling cannot be delivered to the returning officer,
siding officer of such polling station shall Eh inform the returning officer who shall in orm the Commissioner.
en receipt of an information under Lon (1) in relation to a polling station in an
district, the Commissioner may, after making quiries as he may deem necessary to as the truth of such information by Order ed in the Gazette, declare the poll at such station void.
re the Commissioner makes an Order under on (2) in respect of a polling station in an 1 district the provisions of Part IV shall,
mutandis, apply to the counting of votes polling station and the declaration of the f the election, subject to the modifications in this section.
counting officer in charge of the counting o which the polling station in respect of


Page 120
whic made in se
he ha stati boxe the (
(5) E rece to hi of th coun have
of w made secti
(6) upor
nish resu to CC have of w
mad
a fre
арра the e in o the i
each cons
whic
(b) 30, : shal
to,
The be s
(e) of se a pe

:h the Order under subsection (2) has been e, is assigned shall, notwithstanding anything ction 50, commence the counting of votes after Is received all the ballot boxes from the polling ons assigned to his centre, other than the ballot !s from the polling station in respect of which Order under subsection (2) has been made.
Where the Commissioner is of the opinion, upon ipt of the statement under section 55 furnished
m by all the returning officers, that the result e election will not be effected by the failure to it the votes polled, or the votes which would : been polled, in the polling station in respect hich an Order under subsection (2) has been e, he shall proceed to make a declaration under on 56 or section 61.
(a) Where the Commissioner is of the opinion, 1 receipt of the statements under section 55 fur ed to him by all the returning officers, that the It at the election will be affected by the failure punt the votes polled, or the votes which would e been polled, at the polling station in respect -hich an Order under subsection (2) has been e, he shall forthwith appoint a date for taking -sh poll at such polling station, and the date so, pinted shall be not later than one month before expiration of the term of office of the President ffice. The Commissioner shall give notice of new date of poll in at least one newspaper in a of the National language and by notices spicuously displayed in the polling district in ch such polling station is situated.
The provisions of section 25, 26, 27, 28, 29, B1, 33, 34, 35, 36, 38, 39, 41, 42, 43, 44 and 45 1, mutatis mutandis, apply to, and in relation voting, at a poll ordered under paragraph (a). register of electors to be used at that poll shall ame as that used at the earlier poll.
For the purpose of the application the provisions ections 73,74 and subsection (2) of section 78 to -11 ordered under paragraph (a), the references
16


Page 121
in the se a poll i to be a appoint
(d) A election under p of any
(7)
ing sta (6), n Comm section at such under s cast in been tr:
(8) THE candid: Act, or such ca subseci tion (6 subsec
Amendment of section 119B of the principal enactment.
14. Se hereby section
"(4) Th a list of applic section inspect Offices
117

ections to "the day following the date which s taken at such election" shall be deemed i reference to the day following the day ted for the taking of such poll.
person who votes more than once at an 1 by reason of his voting at a poll ordered aragraph (a) shall be deemed not to be guilty offence under this Act.
Where a new date for taking a poll at a polltion has been appointed under subsection o declaration shall be made by the issioner under section 56 or section 61 or 63 until after the counting of the votes polled
poll has been completed and a statement, section 55, indicating the number of votes favour of each candidate at such poll has ansmitted to the Commissioner.
le Commissioner shall consult every ate contesting an election, held under this
· an agent authorized for that purpose by andidate, before making a declaration under tion (5) or appointing a date, under subsecO of this section, or making an Order under tion (2) of section 21".
ction 119B of the principal enactment is amended by the addition, at the end of that , of the following subsection :-
e Commissioner shall cause to be published, the names of the registered electors whose ations have been accepted under this
by making copies thereof available for ion at his office and at the relevant district
29


Page 122
་
་ ་ ་ ་ ་ ་ ་ ་ ་ ་
• ་ ་ ་ ་ ་ ་
,,,,,

118


Page 123
Relevant Se Presidential Electio
PART VI
ELECTION PETITIONS
Avoidance by 90. The election of a candidate to the conviction of candidate.
office of President is avoided by his conviction for any corrupt or illega practice.
Avoidance of election on election petition.
91. The election of a candidate to the office of President shall be declared to be void on an election petition on any of the following grounds which may be proved to the satisfaction of the Supreme Court, namely:-
(a) that by reason of general
bribery, general treating, 01 general intimidation, or other
misconduct, or other circumstances, whether similar to those before enumerated or not, the majority of electors were or may have been prevented from electing the candidate whom they preferred;
(b)
non-compliance with the pro visions of this Act relating to elections, if it appears that the election was not conducted in accordance with the prin -ciples laid down in such provisions and that such noncompliance affected the result of the election;
* See List of Enactments omitted from the R

ANNEX IV (vii)
ictions of the ns Act, No.15 of 1981
(c) that a corrupt practice or
illegal practice was committed in connexion with the election by the candidate or with his knowledge or consent or by any agent of the candidate; .
(d) that the candidate personally
engaged a person, as a canvasser or agent or to speak on his behalf, knowing that such person had
within seven years previous to such engagement been found guilty of a corrupt practice under the Ceylon (Parliamentary Elections) Order in Council, 1946,* or the law relating to the election of Members of Parliament, or the law relating to Referenda, or under this Act;
(e) that the candidate personally
engaged a person, as a canvasser or agent or to speak on his be half, knowing that such person had been a person on whom civic disability had been imposed by a resolution passed by Parliament in terms of Article 81 of the Constitution and the period of such civic disability specified in such resolution had not expired;
(1) that the candidate was at the time
of his election a person disqualified for election to the office of President.
evised Edition.


Page 124
1E
........
..



Page 125
List of Participants
1. Sunil Bastian 2. N. Dias 3. A.M. Anthonypillai 4. Shaun Donnelly 5. Charitha Ratwatte 6. M. Sivalingam 7. T.M. Lafir 8. S. Jayatilaka 9. C.T. Jansz 10. Kumudu Senarath 11. N. Pelpola 12. Ravi Karunanayake 13. L. Ameen 14. B. Tillekeratne 15. Jeoffrey Alagaratnam 16. Kamal Nissanka 17. D. Wimalasekera 18. R. K.W. Goonesekera 19. A.P. Niles 20. Ruana Rajapakse 21. Jayatissa de Costa 22. Javed Yusuf 23. M.F. Amil 24. Rohan Abeygunasekera

ANNEX V


Page 126



Page 127
CENTRE FOR POLICY
The Centre for Policy Alternativ firm belief that there is an urgent need to s for good governance and conflict resoluti society groups have an important and process.
The primary role envisaged for the active and interventionary one, aimed at alternatives for non-violent conflict r Accordingly, the work of the Centre invo which the policy alternatives are identifi
BOARD OF DIRECTORS -
Sunil Bastian Rohan Edirisinha Dr. Arjuna Parakrama Cyrene Siriwardhana Dr. Shelton Wanasinghe Dr. Jayadeva Uyangoda Bradman Weerakoon Gowrie Ponniah
EXECUTIVE DIRECTOR
Dr. Paikiasothy Saravanamuttu
- . . : *?'. * -.. :**
12

ALTERNATIVES (CPA)
....: : . es (CPA) was formed in June 1996 in the trengthen institution and capacity building on in Sri Lanka and that non-partisan civil constructive contribution to make to this
! . .
:Centre in the field of public policy is a prothe dissemination and advocacy of policy esolution and democratic governance. lves a major research component through ed and developed. ...
. . . . . . . . .
. . . . . . . . . . . . . . .
: : : : : : : : ***. : :
. . . . .
- .
. : : : : : : : ...:
- ..,
- *!:ii: !. : : : .,
viti 1 : 41. V }
*" ER
2'i:
. . - .) ****
:.irir. Oyi.
. ***:


Page 128
LIST OF CPA
*
Final Report on Election Related Vio 25th April 1997 (English & Sinhala
Media Monitor 1 June 1997 (Trilin
Parlimentary Debates on the Emer
Moot Point - Legal Review 1997 (Er
1. .. ':.. Law, Human Rights and HIV/AIDS
CMEV Final Report of Election-Rela 'Election in the Jaffna Peninsula 19
; . Colombo Declaration on Media Free (English & Sinhala)
Media Monitor 2 December 1997 (
* * *
Moot Point - Legal Review 1998 (En
Final Report on Election - Related Vi The North - Western Provincial Coun (English, Sinhala & Tamil)
Peace Monitor August 1999 (Triling
Peace Monitor September (Trilingu
The Role of the Ombudsman Septe
Final Report on Election - Related V The Presidential Election - 21st Deo
Peace Monitor October to Decembe
Ethnic Conflict and Responsibility
Peace Process and Responsibilities (Sinhala & Tamil)
Peace Monitor January - March 20
Moot Point - Legal Review 1999 (Er

PUBLICATIONS,
ence During the Local Government Election
gual)
gency January - July 1997 (Sinhala & Tamil)
-glish)
:A Guide May 1998 (English & Sinhala)
ted Violence: The Local Government 98 (English & Tamil)
dom and Social Responsibility
Trilingual)
Eglish)
iolence cil Election - 1999
zual)
al)
mber 1999 (English, Sinhala & Tamil)
iolence
ember 1999 (English)
'r 1999 (Trilingual)
of Civil Society January 2000 (Sinhala & Tamil)
of Minority Political Praties February 2000
100 (Trilingual)
glish)


Page 129



Page 130