In the Supreme Court of the Democratic Socialist Republic of Sri Lanka
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IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA 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 Ranjith Madduma Bandara, 31/3 Kandawatte Terrace, Nugegoda PETITIONER SC FR Application No.-: _____ /2020 -VS- 1. (a) Attorney General, Attorney General’s Department, Hulftsdorp, Colombo 12. 1. (b) Attorney General, Attorney General’s Department, Hulftsdorp, Colombo 12. 2. Mahinda Deshapriya, Chairman 3. N. J. Abeysekera, Member 4. Ratnajeevan Hoole, Member 2nd – 4th Respondents all of, Election Commission, Sarana Mawatha, Rajagiriya RESPONDENTS On this 5th day of May 2020 Page 1 of 31 TO: HIS LORDSHIP THE CHIEF JUSTICE AND THEIR LORDSHIPS THE OTHER HONOURABLE JUDGES OF THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA The Petition of the Petitioner above named appearing by Dinesh Vidanapathirana his registered Attorney-at-Law, states as follows; THE PETITIONER 1. The Petitioner is: (a) a citizen of Sri Lanka, (b) a Member of the Eighth Parliament of Sri Lanka, and (c) the General Secretary of the Samagi Jana Balawegaya, a Registered Political Party, which tendered Nomination Forms for all 22 Districts of Sri Lanka, for the Parliamentary Elections 2020. 2. The Petitioner makes this Application in his 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. THE RESPONDENTS 3. 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 infringement of fundamental rights of the Petitioner and the citizens of Sri Page 2 of 31 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. BACKGROUND TO COVID-19 4. At the end of 2019 it emerged that there was a new strain of coronavirus described as resembling SARS (which was declared a pandemic in 2003) 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. Screenshots of news articles appearing in the Japan Times and CGTN about the virus (obtained at https://www.japantimes.co.jp/news/2019/12/31/asia- pacific/science-health-asia-pacific/outbreak-sars-like-pneumonia-investigated- china/#.XovskYgzbIU and https://news.cgtn.com/news/2019-12-31/Authorities- begin-testing-after-pneumonia-cases-in-central-China-MRPvtFbCve/index.html ) are annexed hereto and are marked as P1(a) and P1(b) and are pleaded as part and parcel hereof. 5. The Petitioner states that the said novel coronavirus, later named as (and hereinafter referred to as) “COVID-19”, began to spread across the world, with many countries taking measures to prepare for the possibility that the virus would enter their borders. Page 3 of 31 6. The threat of imminent spread was known in Sri Lanka too, and authorities began taking measures to prepare to deal with the virus. 7. 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 hereto marked as P2(a) and P2(b) and pleaded as part and parcel hereof. 8. The Petitioner states that (as demonstrated in Hansard dated 5th February 2020 already marked P2(b)) 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 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. 9. The Petitioner states that the President of the Country [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. Screenshots of a news article appearing in news.lk (obtained from https://www.news.lk/news/political-current-affairs/item/29292-national-action- committee-to-prevent-coronavirus-meets-today) is annexed hereto marked as P3 and pleaded as part and parcel hereof. 10. 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. Page 4 of 31 A copy of the daily situation report published by the Epidemiology Unit of the Ministry of Health and Indigenous medicine for 28th January 2020, obtained from http://www.epid.gov.lk/ is annexed hereto marked as P4 pleaded as part and parcel hereof. 11. It is thus clear the Government was aware of the severity of the situation in January 2020. DISSOLUTION OF PARLIAMENT 12. 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. 13. 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. 14. 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. 15. 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. 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 hereto marked as P5 pleaded as part and parcel hereof. Page 5 of 31 16. 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. REQUESTS TO RECONVENE PARLIAMENT AND POSTPONE THE ELECTION 17. 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. A copy of the daily situation report published by the Epidemiology Unit of the Ministry of Health and Indigenous medicine for 2nd March 2020, obtained from http://www.epid.gov.lk/ is annexed hereto marked as P6 and pleaded as part and parcel hereof. 18. On 11th March 2020 the World Health Organization declared COVID-19 a global pandemic, citing the rapid spread of the virus, with (as at that date) approximately 118,000 cases in over 110 countries in the world. As at 3rd May 2020, the number of COVID-19 cases worldwide stood at over 3.34 million, with over 238,000 deaths. Screenshots of a news items appearing in TIME and CNN (obtained at https://time.com/5791661/who-coronavirus-pandemic-declaration/ and https://edition.cnn.com/2020/03/11/health/coronavirus-pandemic-world-health- organization/index.html) are annexed hereto marked as P7(a) and P7(b) and are pleaded as part and parcel hereof. An extract from the WHO situation report 104 for 3rd May 2020 (obtained at https://www.who.int/docs/default-source/coronaviruse/situation- reports/20200503-covid-19-sitrep-104.pdf?sfvrsn=53328f46_2 ) is annexed hereto marked as P7(c) and is pleaded as part and parcel hereof. Page 6 of 31 19. The Petitioner states that 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. 20. This is especially so, because the global medical and scientific community had recognised that the virus was highly contagious, and one of the immediate measures recommended and adopted by many countries was that of ‘social distancing’; i.e. – to limit close contact between persons and to prevent public gatherings. 21. Thus, many called on the President to postpone the election by cancelling the proclamation of dissolution and / or recalling or reconvening the Eighth Parliament.