IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF

In the matter of an application under and in terms of Articles 17 and 126 of the Constitution of the Democratic Socialist Republic of Sri Lanka

1. Patali 88/1 Jayanthipura Road, Battaramulla

2. , Horawala, Welipenne

PETITIONERS

SC FR Application No.-: _____ /2020 -VS-

1. (A) Hon. Attorney General, Attorney General’s Department, Hulftsdorp, 12.

1. (B) Hon. Attorney General, Attorney General’s Department, Hulftsdorp, Colombo 12.

2. Mr. Mahinda Deshapriya, Chairman

3. Mr. N. J. Abeysekera PC, Member

4. Prof. Ratnajeevan Hoole, Member

2nd – 4th Respondents all of, Election Commission, Sarana Mawatha, Rajagiriya

RESPONDENTS

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AFFIDAVIT

WE, Patali Champika Ranawaka of 88/1 Jayanthipura Road, Battaramulla, and Kumara Welgama, of Horawala, Welipenne being Buddhists, do hereby solemnly, sincerely and truly, declare and affirm as follows:

1. We are the Petitioners and affirmants above named and affirm to the following from our personal knowledge and from documents available to us.

2. We are:

(a) citizens of Sri Lanka,

(b) Members of the Eighth ,

(c) the Leaders of the (which is a registered political party) and the Nava Lanka Nidahas Pakshaya (which has sought registration as a political party), respectively, and

(d) nominated as candidates of the , a Registered Political Party, which tendered Nomination Forms for all 22 Districts of Sri Lanka, for the Parliamentary Elections 2020.

3. We make this Application in our own right and in the public interest, with the objective of safeguarding the rights and interests of the general public of Sri Lanka and securing due respect, regard for and adherence to the Rule of Law, the Constitution, which is the supreme law of the land, and with a view to protecting the fundamental rights required to be respected, secured and advanced as morefully set out, hereinafter.

4. The Respondents to this Application are as follows;

(i) The 1A Respondent is the Hon. Attorney General in terms of the proviso to Article 35(1) of the Constitution, as this application is made in respect of

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infringement of fundamental rights of ourselves and the citizens of Sri Lanka by the action(s) and inactions(s) of the President acting in his official capacity, as hereinafter more fully set out.

(ii) The 1B Respondent is the Hon. Attorney General, made a party to this application as required by law, in terms of the contemplation and requirements of Supreme Court Rule 44(3) read with Article 126(2) and 134(1) of the Constitution.

(iii) The 2nd to 4th Respondents are, respectively, the Chairman, and the members of the Election Commission.

5. (a) At the end of 2019 it emerged that there was a new strain of coronavirus spreading in the city of Wuhan in the Hubei Province of China. The virus was considered to be highly infectious, spreading inter alia by human to human contact and from surfaces to humans.

(b) The said novel coronavirus, later named as “COVID-19”, began to spread across the world.

(c) The threat of imminent spread was known in Sri Lanka too, and authorities began taking measures to prepare to deal with the virus.

(d) The danger posed by the virus was also raised in Parliament on numerous occasions by the Leader of the Opposition (on or around 24th January and 5th February 2020), who requested the Government to take adequate steps to respond to the imminent crisis.

Copies of extracts from the Hansards of Parliament dated 24th January 2020, and 5th February 2020, obtained from https://www.parliament.lk/ are annexed to the Petition marked as P1(a) and P1(b) and pleaded as part and parcel thereof.

(e) The Leader of the Opposition also raised the need to potentially restrict travel from China and / or implement mandatory quarantine in order to curtail the

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spread of the virus, but the Minister of Health rejected the said proposal, implying that the proposal was aimed at souring relations with China, to whom the country is indebted.

(f) The President [1A Respondent] was aware of the threat posed by COVID-19, and on or about 26th January 2020 appointed a National Action Committee comprising 22 experts, to take necessary action to prevent the spread of the virus in Sri Lanka.

(g) The first case of COVID-19 in Sri Lanka was detected on or around 27th of January 2020, and by 28th January 2020 the Government had declared 28 hospitals around the country as treatment centers for COVID-19, and installed thermal scanners at the airport.

(h) It is thus clear the Government was aware of the severity of the situation in January 2020.

6. (a) The first meeting of the Eighth Parliament was held on 2nd September 2015, and as such, in terms of Article 62 of the Constitution, the term of the Eighth Parliament would have ordinarily extended until 1st September 2020.

(b) In terms of Article 70(1) of the Constitution, the President of the Republic [1A Respondent] was empowered to dissolve Parliament on or after the expiry of four years and six months from the first meeting of Parliament (which was on 2nd September 2015) and call for a General Election.

(c) This is, however, a discretionary provision, and unless so dissolved by the President, the Eighth Parliament could have run its full term until 1st September 2020.

(d) By Proclamation dated 2nd March 2020, the President of the Republic [1A Respondent] acting under Articles 70 and 33(2)(c) of the Constitution dissolved Parliament with effect from 2nd March 2020.

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A copy of the Proclamation dissolving Parliament published in Gazette Extraordinary No. 2165/8 dated 2nd March 2020, obtained from http://documents.gov.lk/, is annexed to the Petition marked as P2 pleaded as part and parcel thereof.

(e) According to the said Proclamation, nominations for the Parliamentary Election were to be made between 12th and 19th March 2020, the election was to be held on 25th April 2020 and the new Parliament was to meet on 14th May 2020.

7. (a) At the time of the dissolution of Parliament, there had been approximately 2977 deaths from COVID-19 globally, and the virus had spread to 58 countries across the world (including Sri Lanka). In the following days, the global situation deteriorated rapidly.

(b) On 11th March 2020 the World Health Organization declared COVID-19 a global pandemic.

(c) Conducting an election in the midst of this pandemic would have put the lives and health of the citizenry at great risk, as the spread of the virus would have been exacerbated during periods of campaigning, voting, and counting the votes polled etc.

(d) Thus, many (including the Leader of the Samagi Jana Balawegaya) called on the President to postpone the election by cancelling the proclamation of dissolution and / or recalling or reconvening the Eighth Parliament.

(e) However, the President ignored the said requests and warnings, did not take any such steps to rescind the dissolution of Parliament, and allowed nominations for the said election to proceed.

(f) At a video conference of the Heads of the SAARC countries to discuss a regional response to COVID-19 (on 15th March 2020), the President informed other Heads of State / leaders that the elections in April would go ahead as planned.

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(g) In his Address to the Nation (on the 17th of March 2020) with regard to COVID- 19, the President requested the people to vote for a Government led by Hon. at the upcoming election.

A screenshot of a translation of the transcript of the President’s Address to the Nation published in http://www.pmdnews.lk/ is annexed to the Petition marked as P3 and pleaded as part and parcel thereof.

(h) This was despite the fact that several local cases of COVID-19 had by then been detected in the island and 16th to 19th March 2020 had been declared as public holidays, as a measure to contain the spread of the virus.

(i) By failing to withdraw / rescind the dissolution proclamation prior to the nomination period, the President exposed a great many citizens, including public officers involved in the election process, and political activists and advisers involved in Party nomination processes, to the risk of infection.

8. After the conclusion of the nominations, acting in terms of section 24(3) of the Parliamentary Elections Act, the Election Commission (2nd – 4th Respondents) postponed the date of the Election and announced that the date for the election would be announced later.

A copy of the order postponing the election published in Gazette Extraordinary No. 2167/19 dated 21st March 2020, obtained from http://documents.gov.lk/, is annexed to the Petition marked as P4 and is pleaded as part and parcel thereof.

9. Following this postponement of the election, there were once again many calls on the President to recall or reconvene Parliament.

Screenshots of news items appearing in Economy Next and Tamil Guardian (obtained at https://economynext.com/sajith-wants-parliament-reconvened-57865/ and https://www.tamilguardian.com/content/opposition-calls-sri-lankan- government-reconvene-parliament) are annexed to the Petition marked as P5(a) and P5(b) respectively and are pleaded as part and parcel thereof.

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10. A de facto curfew has been in place in most parts of the country since 20th March 2020, with limited breaks in some districts. Prior thereto all schools were also closed with effect from the 13th of March 2020.

11. As such the President was clearly mindful of the fact that usual human activity resulting in contact with others should be restricted, in order to prevent the spread of the virus.

12. However, the curfew was imposed after nominations closed, demonstrating a prioritization by the President of securing political power, over public health.

13. Although public activity was restricted by the so-called curfew, the President failed and neglected, even by 20th March 2020, to rescind the dissolution gazette and / or to reconvene Parliament.

14. We are aware that:

(a) on or about 31st March 2020 and 1st April 2020 the Election Commission wrote to the Secretary to the President, indicating the inability to conduct elections during the timelines specified in the Dissolution Proclamation. The Election Commission also requested that the matter be referred to Your Lordships’ Court.

Copies of the letters sent from the Election Commission to the Secretary to the President dated 31st March 2020 and 1st April 2020 (obtained from the internet) are annexed to the Petition marked P6(a) and P6(b) respectively and pleaded as part and parcel thereof.

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(b) The imminent Constitutional issue described by the Election Commission was as follows;

(i) As per the Constitution, the new Parliament should be convened three months from the dissolution of the old Parliament.

(ii) As the old Parliament was dissolved on 2nd March 2020, it is constitutionally required that the new Parliament be convened by the 1st June 2020.

(iii) In order for the new Parliament to meet on the 1st June 2020, it would be necessary for elections to be held by 27th or 28th of May 2020.

(iv) To hold elections by those dates, the Commission would have to commence preparation by 20th April 2020 at least.

(v) Due to the prevailing COVID–19 crisis in the Country at the time (as at the date the Commission send the letter to the President) it appeared unlikely that such steps could commence on the 20th April 2020.

(vi) As such, it was unlikely that the new Parliament would be able to meet within the three months of dissolution of the old Parliament, as required by the Constitution.

(c) The Secretary to the President had informed the Election Commission that such a reference to Your Lordships’ Court was not necessary. In a press release containing the said letter it was revealed that the Secretary to the President had stated that;

…As per the advice by His Excellency, it is not possible at this point of time to state that the election cannot be held on or before 28.05.2020. The date for fixing the poll is the responsibility of the Election Commission and His Excellency has no wish to interfere with duties and obligations of the Election Commission.

I may point out that in terms of Section 24[3] of the Parliamentary Elections Act, the time period giving notice of adjourned poll is not less than 14 days which implies that poll which was postponed, could be held even on 15th day…

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A screenshot of the Press Release published on http://www.pmdnews.lk/secretary-to-the-president-sends-response-letter-to- chairman-of-election-commission/ is annexed to the Petition marked as P7 and pleaded as part and parcel thereof.

15. Subsequently, by a proclamation contained in Gazette Extraordinary 2172/03 of 20th April 2020, the Election Commission (2nd – 4th Respondents) determined that the Election would be held on 20th June 2020. A copy of the order re-fixing the election published in Gazette Extraordinary No. 2172/03 dated 20th April 2020, obtained from http://documents.gov.lk/, is annexed to the Petition marked as P8 and is pleaded as part and parcel thereof.

16. The 2nd – 4th Respondents also clarified that the feasibility of conducting the election on the said date (i.e. 20th June 2020) would be re-evaluated based on the prevailing health situation.

17. The President is constitutionally mandated and obliged to ensure that the Constitution is respected and upheld. This would include the duty to ensure that:

(a) the country is not left without a Parliament for a period of more than three months;

(b) elections are free and fair;

(c) public health is not placed at risk due to attempts to conduct elections prior to the stipulated timelines.

18. We state that:

(a) The purported Proclamation of Dissolution was issued for political motives, and in the background of the coronavirus, was a breach of the President’s Constitutional duties, and grossly unreasonable and amounts to an infringement (and involves continuing violation) of our rights, and the rights of the citizenry, under Article 12(1) of the Constitution.

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(b) The failure of the President to rescind the said Proclamation even upon the declaration of the ‘curfew’, when it became evident that ‘social distancing’ requirements made it clear that an election could not be held, was a breach of the President’s Constitutional duties, and grossly unreasonable and amounts to an infringement (and involves continuing violation), of our rights, and the rights of the citizenry, under Article 12(1) of the Constitution.

(c) The failure of the President to rescind the said Proclamation even upon the declaration of the Election Commission which made it manifest that an election could not be held within three months of the dissolution of Parliament, was a breach of the President’s Constitutional duties, and grossly unreasonable and amounts to an infringement (and involves continuing violation) of our rights, and the rights of the citizenry, under Article 12(1) of the Constitution.

(d) We are advised that the Proclamation of Dissolution of Parliament (P2) became null and void simultaneously with the determination of the Election Commission that the election would not be held within three months of the dissolution of Parliament.

19. We further state that:

(a) it is mandatory that Parliament is in place to ensure that finances necessary to battle COVID-19 are lawfully and constitutionally approved.

(b) if the government is to effectively combat the threat of COVID-19 within the framework of the Constitution and the law, the Parliament must be convened to adopt lawful measures (including social distancing requirements / lawful restrictions on movement and / or curfews as may be necessary) to combat the pandemic, and to provide legitimacy, support, and oversight of the government’s response to the crisis.

(c) any attempt to exercise the powers of Government without any Parliamentary oversight for an indefinite period of time would amount to a violation of the

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Constitution, and the constitutional principles enshrined therein, including the Sovereignty of the People; the separation of powers; and the need to have in place ALL three Organs of Government – the Legislature, the Executive, and the Judiciary.

20. On or about the 27th of April 2020, (Leader of the Opposition and Leader of Samagi Jana Balawegaya), (Leader of the UNP), R Sampanthan (Leader of ), (Leader of ACMC), Rauf Hakeem (Leader of SLMC), Patali Champika Ranawaka (Leader of JHU – 1st Petitioner) and (Leader of Tamil Progressive Alliance), all being Members of the 8th Parliament of Sri Lanka, representing the majority of the Members of that Parliament, acting in the national interest and devoid of partisan objectives, wrote to the President (1A Respondent) guaranteeing responsible co-operation towards ensuring necessary Parliamentary approval for steps necessary to deal with the COVID-19 pandemic, if the dissolution were rescinded and / or Parliament reconvened. They further guaranteed that they would not seek to defeat the Government or obstruct any necessary measures.

A true copy of the said joint statement is annexed to the Petition marked as P9 and pleaded as part and parcel thereof.

21. However, the President (1A Respondent) through his Secretary indicated that he would not rescind the Proclamation of Dissolution and / or summon Parliament.

A copy of the said letter is annexed to the Petition marked as P10 pleaded as part and parcel thereof.

22. We state that:

(a) Campaigning, (including activities such as door to door campaigns, focus-group discussions, and mass rallies which give political parties and independent candidates the opportunity to communicate their positions and policies, and the electors the opportunity and ability to make a fully informed decision at the polls)

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is a vital and indispensable component of free and fair elections and the franchise.

(b) social distancing requirements will prevent such campaign activities being conducted.

(c) a free and fair election cannot be held if the election proceeds in the present circumstances.

23. While the infringement of other fundamental rights are also disclosed in this Application, we seek redress through Your Lordships’ Court in respect of the infringement of the following Fundamental Rights of ourselves, and the citizens of Sri Lanka;

A. We are deprived of the ability to participate in the decision making of the country, or to air concerns or represent citizens’ interests through Parliament. This is a violation of the sovereignty of the People elaborated in Article 4 read with Article 3 of the constitution, and infringes our rights under Article 12(1) and 14(1)(a) of the Constitution, and amounts to a continuing infringement thereof;

B. The President by failing to rescind the dissolution proclamation (P2) simultaneously with the decision of the Election Commission to postpone the Election to 20th June 2020 or beyond (which will not permit the new Parliament to meet within 3 months of the dissolution), has acted in a grossly unreasonable and irrational manner, actuated by mala fide political considerations, and thus acted in breach of his constitutional obligation (including his obligation under Article 33) to ensure that the Constitution is respected and upheld, and acted in breach of his duty as a fiduciary exercising power, including constitutional power, in trust for the People, and has thus and otherwise infringed the fundamental rights guaranteed to ourselves and the citizens of Sri Lanka by Article 12(1) of the Constitution. The failure to rescind same also amounts to a continuing infringement of the said fundamental right;

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C. We also fear imminent infringement of our fundamental rights, and the fundamental rights of the citizens of Sri Lanka, (by the conduct of elections in the circumstances aforementioned, prior to the satisfactory containment of the COVID-19 crisis) guaranteed by Articles 14(1)(a), 14(1)(b), 14(1)(c), 12(1), 10, Article 4(d) and (e), and Article 3, if elections are held under these circumstances, as it will not permit a free and fair election, but will pose a grave threat to public health.

24. We respectfully state that if the dissolution proclamation (P2) is not determined to be null and void and / or rescinded immediately irreversible harm will be caused to the Fundamental Rights of ourselves and the citizens of Sri Lanka.

25. We state that the acts and / or omissions of the Respondents herein complained of amount to continuing infringements of the Fundamental Rights of ourselves and the citizens of Sri Lanka.

26. We respectfully state that if the interim relief prayed for is not granted grave and irreparable harm and damage will be caused to ourselves and the citizens of Sri Lanka.

27. We respectfully seek the indulgence of Your Lordships' Court to reserve our right to amend pleadings, tender further affidavits / documents substantiating the averments contained above in the event of further material becoming available regarding the actions complained of in the preceding paragraphs.

28. We state that the aforesaid actions of the Respondents amount to executive and / or administrative action / inaction within the meaning of Articles 17 & 126 of the Constitution.

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29. We respectfully state that we were prevented from sooner coming before Your Lordships’ Court as we were prevented from filing this action in Court due to the aforementioned de facto curfew which was imposed and in operation since 20th March 2020 (with a limited break therein), and due to the Registry of Your Lordships’ Court not being operational during all or most of such time.

30. We state that we have not previously invoked the jurisdiction of Your Lordships’ Court previously in respect of matters herein pleaded.

31. In the aforesaid we pray that Your Lordships’ Court will be pleased to grant us the relief prayed for in the Petition.

Read over, understood, and affirmed to ] and signed by the affirmants above ] named, in my presence at Colombo ] on this 8th day of May 2020 ] Before Me

Justice of the Peace / Commissioner for Oaths

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