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

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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

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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.

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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.

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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.

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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.

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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.

Screenshots of news items appearing in TheMorning.lk and SriLankaBrief.org (obtained at http://www.themorning.lk/elections-monitoring-body-calls-for- postponement-of-general-elections/ and https://srilankabrief.org/2020/03/covid- 19-opposition-political-parties-including-the-tna-call-for-the-postponement-of-the- general-elections-in-sri-lanka/) are annexed hereto, marked as P8(a) and P8(b) and are pleaded as part and parcel hereof.

22. The Petitioner states that there are three ways in which the Eighth Parliament can be recalled or reconvened, which are as follows:

A. By rescinding and / or nullifying the proclamation of dissolution, which would bring the dissolved Parliament back to life for the remainder of its term (i.e., until 1 September 2020).

B. In terms of Article 70(7) of the Constitution, which provides that “If at any time after the dissolution of Parliament, the President is satisfied that an emergency has arisen of such a nature that an earlier meeting of Parliament is necessary,

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he may by Proclamation summon the Parliament which has been dissolved to meet...”

C. In terms of Article 155 of the Constitution, if the President declares a State of Emergency in terms of the Public Security Ordinance

23. 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.

24. On 15th March 2020, India’s Prime Minister Narendra Modi hosted a video conference of the Heads of the SAARC countries to discuss a regional response to COVID-19. At the meeting, having reported the measures taken thus far (including, at this point in time, inter alia the closure of schools and universities) the President informed other Heads of State / leaders that the elections in April would go ahead as planned.

Screenshots of a news item appearing in colombogazette.com (obtained at https://colombogazette.com/2020/03/15/president-tells-saarc-leaders-april- election-will-go-ahead/) and the Press Release published by the President’s Media Division (obtained at http://www.pmdnews.lk/president-proposes-collective-saarc- response-to-fight-covid-19/ ) are annexed hereto marked as P9(a) and P9(b) respectively and pleaded as part and parcel hereof.

25. Further, 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. Mahinda Rajapaksa 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 hereto marked as P10 and pleaded as part and parcel hereof.

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26. 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 “special holidays”, as a measure to contain the spread of the virus.

Screenshots of news items appearing in Newsfirst.lk (obtained at https://www.newsfirst.lk/2020/03/14/breaking-monday-march-16th-declared-a- public-holiday/ and https://www.newsfirst.lk/2020/03/17/government-declares- three-day-holiday/) are annexed hereto marked as P11(a) and P11(b), and a copy of Gazette Extraordinary 2167/7 dated 17th March 2020 is marked P11(c), respectively and pleaded as part and parcel hereof.

A copy of the daily situation report published by the Epidemiology Unit of the Ministry of Health and Indigenous medicine for 17th March 2020, obtained from http://www.epid.gov.lk/ is annexed hereto marked as P12 and pleaded as part and parcel hereof.

27. 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.

28. The said failure of the President amounts to grossly unreasonable inaction, and amounts to inter alia a violation of the fundamental right to equal protection of the law, of the Petitioner and the citizens of Sri Lanka, guaranteed under Article 12(1) of the Constitution.

ELECTION COMMISSION POSTPONES ELECTION

29. The President did not take any steps to postpone the Parliamentary Election by cancelling the dissolution and / or recalling or reconvening Parliament.

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30. However, after the conclusion of the nominations, acting in terms of section 24(3) of the Parliamentary Elections Act, the Election Commission (2nd – 4th Respondents) became authorized to declare that the election could not take place on the scheduled date

31. As such, on or about the 21st of March 2020 the Election Commission made an order under the said provision postponing the election, and announcing 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 hereto marked as P13 and is pleaded as part and parcel hereof.

32. However, the Election Commission is not empowered to recall or reconvene the Eighth Parliament.

33. 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 hereto marked as P14(a) and P14(b) respectively and are pleaded as part and parcel hereof.

34. The Petitioner further states that (as morefully described hereinafter), 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.

A screenshot of a press release appearing in http://www.pmdnews.lk/ (obtained at http://www.pmdnews.lk/%E0%B6%85%E0%B6%AF- %E0%B6%B4%E0%B7%83%E0%B7%8A%E0%B7%80%E0%B6%BB%E0%B7

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%94-06-00-%E0%B7%83%E0%B7%92%E0%B6%A7- %E0%B7%83%E0%B6%B3%E0%B7%94%E0%B6%AF%E0%B7%8F- %E0%B6%B4%E0%B7%99%E0%B6%BB%E0%B7%80%E0%B6%BB/ ) is annexed hereto marked as P15(a) and is pleaded as part and parcel hereof.

Screenshots of press releases appearing in http://www.pmdnews.lk/ (obtained at http://www.pmdnews.lk/announcement-on-curfew/ and http://www.pmdnews.lk/%e0%b6%b1%e0%b7%80%e0%b6%ad%e0%b6%b8- %e0%b6%87%e0%b6%b3%e0%b7%92%e0%b6%bb%e0%b7%92%e0%b6%b1 %e0%b7%93%e0%b6%ad%e0%b7%92- %e0%b6%b1%e0%b7%92%e0%b7%80%e0%b7%9a%e0%b6%af%e0%b6%b1 %e0%b6%ba-2/) are annexed hereto marked as P15(b) and P15(c) and are pleaded as part and parcel hereof.

A screenshot of a news item appearing in News.lk (government official news portal) (obtained at https://www.news.lk/news/political-current-affairs/item/29679-all- schools-to-be-closed-until-april-20th) is annexed hereto marked as P15(d) and is pleaded as part and parcel hereof.

A screenshot of a news item appearing in News.lk (government official news portal) (obtained at https://www.news.lk/news/political-current-affairs/item/30028-curfew- imposed-in-other-districts-in-force-until-5-00-am-on-monday-27) is annexed hereto marked as P15(e) and is pleaded as part and parcel hereof.

35. 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.

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

37. The Minister of Health too made a statement suggesting that there was no need to revoke the said dissolution, since (in her view) the incumbent government was confident of winning the election.

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38. Subsequent to postponement of elections, views have also been expressed by politicians supporting the government, who have said inter alia that they are presently in government (and are represented by the President, Prime Minister and Cabinet), and they are going to win the election if held, and accordingly, as in either scenario they are/will be in power, they are not in a hurry to conduct elections.

A screenshot of a news item appearing in dailymirror.lk (obtained at http://www.dailymirror.lk/breaking_news/President-not-in-a-hurry-to-hold- elections:-Gammanpila/108-187369 ) is annexed hereto marked as P15(f) and is pleaded as part and parcel hereof.

39. In any event, 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.

40. The President’s failure to rescind the dissolution gazette on 20th March 2020, even upon the imposition of the curfew, demonstrates that such failure was grossly unreasonable, irrational, and for mala fide political considerations, and amounts to a continuing violation of the fundamental rights of the citizens of Sri Lanka, including the Petitioner, as morefully setout hereinafter.

ELECTION COMMISSION REQUESTS PRESIDENT TO REFER MATTER TO THE SUPREME COURT

41. The Petitioner is aware that 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.

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

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annexed hereto marked P16(a) and P16(b) respectively and pleaded as part and parcel hereof.

42. 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.

43. The Petitioner states that on or about 9th April 2020, it was revealed that 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.

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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…

A screenshot of the Press Release published on http://www.pmdnews.lk/ (obtained at http://www.pmdnews.lk/secretary-to-the-president-sends-response-letter-to- chairman-of-election-commission/) is annexed hereto marked as P17 and pleaded as part and parcel hereof.

44. 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 hereto marked as P18 and is pleaded as part and parcel hereof.

45. 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.

Screenshots of news articles appearing in The Hindu and in ABC News (obtained at https://www.thehindu.com/news/international/sri-lanka-ec-announces-polls-on- june-20-opposition-voices-concern/article31399570.ece and https://abcnews.go.com/Health/wireStory/sri-lanka-quandary-holding-elections- amid-virus-70237873 respectively) are annexed hereto marked as P19(a) and P19(b) and are pleaded as part and parcel hereof.

46. 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;

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

47. Therefore the President (1A Respondent), by failing to rescind the Proclamation contained in P5 failed to fulfil his constitutional obligations, including inter alia his duty under Article 33(1)(a) of the Constitution to ensure that the Constitution is respected and upheld, and thus and otherwise violated the fundamental right of the Petitioner and the citizens of Sri Lanka to equal protection of the law, guaranteed under Article 12(1) of the Constitution.

OBSTACLES TO A FREE AND FAIR ELECTION

48. The Petitioner states that a free and fair election cannot be held if the election proceeds in the present circumstances.

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

50. The de facto curfew continues to prevail in many parts of the country.

A screenshot of a press release appearing in pmdnews.lk (obtained at http://www.pmdnews.lk/%E0%B6%AF%E0%B7%9B%E0%B6%B1%E0%B7%92 %E0%B6%9A-%E0%B6%A2%E0%B6%B1- %E0%B6%A2%E0%B7%93%E0%B7%80%E0%B7%92%E0%B6%AD%E0%B6 %BA-%E0%B7%83%E0%B7%84- %E0%B6%86%E0%B6%BA%E0%B6%AD%E0%B6%B1%E0%B7%92%E0%B6 %9A/ is annexed hereto marked as P20 and is pleaded as part and parcel hereof.

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51. If the dissolution is not rescinded, the election may be held on 20th June 2020 or a new date announced by the Election Commission, and:

(a) social distancing requirements may hinder the afore-mentioned campaign activities from taking place (as campaigning activities necessarily involve groups (at times, large groups) of people meeting and moving from place to place), and thereby compromise the poll’s status as being truly free and fair. Those seeking office should have a meaningful opportunity to reach voters, and those voting should have a meaningful opportunity to determine for whom they should cast their vote.

(b) Public health and safety will be adversely affected.

52. It was predicted by the medical community that the number of cases of COVID-19 in the country may in fact be much higher than the number of cases detected, as the frequency of testing for the virus is insufficient to properly control the spread of the virus.

Screenshots of news items appearing in the Daily Mirror, Lanka News Web and NewsFirst.lk (obtained at http://www.dailymirror.lk/insight/The-State-of-Covid-19- Testing-in-Sri-Lanka/374-186053 , https://www.lankanewsweb.net/67-general- news/60071-30-day-elimination-of-COVID-19-is-false--says-GMOA and https://www.newsfirst.lk/2020/04/27/sri-lankan-health-expert-urges-lockdown- extension-amid-surge-in-infections/) are annexed hereto marked as P21(a) , P21(b) and P21(c) respectively and pleaded as part and parcel hereof.

Copies of the daily situation reports published by the Epidemiology Unit of the Ministry of Health and Indigenous medicine for 20th April 2020, 30th April 2020, and 4thMay 2020 obtained from http://www.epid.gov.lk/ are annexed hereto marked as P22(a), P22(b) and P22(c) and pleaded as part and parcel hereof.

53. The rapid increase in the number of confirmed COVID- 19 cases in the country clearly indicated that the situation is becoming increasingly serious. These numbers include a large number of members of the tri-forces who have been involved in the frontlines of the pandemic.

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A screenshot of a news item appearing in Times Leader (obtained at https://www.timesleader.com/wire/nation-world/781903/sailors-become-biggest- cluster-of-infections-in-sri-lanka) is annexed hereto marked as P23 and pleaded as part and parcel hereof.

54. Accordingly, the Petitioner states that proceeding with an election in June 2020 is extremely unwise, grossly unreasonable, irrational under the conditions of COVID- 19, and the decision not to revoke the proclamation of dissolution has been made mala fide and for political considerations.

55. The Petitioner therefore states that the President’s decision not to rescind the afore-mentioned Gazette (even on, or after, 20th April 2020) is mala fide, irrational and grossly unreasonable, and amounts to a violation and a continuing violation of the fundamental rights of the citizens of Sri Lanka, including the Petitioner.

IMPORTANCE OF RECONVENING PARLIAMENT

56. As per Article 33A of the Constitution ‘the President shall be responsible to Parliament for the due exercise, performance and discharge of his powers, duties and functions under the Constitution and any written law, including the law for the time being relating to public security.’

57. As set out in Articles 3 and 4 of the Constitution, Sri Lanka’s Constitutional structure recognises that sovereignty is vested in the People, and some elements of such Sovereignty are exercised and enjoyed inter alia through Parliament, the President, and the Courts.

58. The Constitution thus and otherwise recognises the Legislature, the Executive, and the Judiciary as three mandatory and indispensable pillars and organs of government.

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59. The Constitution does not envisage a situation in which only one of such organs (i.e. the President) is empowered to run the country unchecked by the others (Parliament and the Courts) for an extended period of time. It is mandatory that the President remains accountable to Parliament. This is especially important when decisions are being made which have a critical impact on the livelihoods and liberties of the public at large.

60. Further, the provisions of the Constitution, and especially Article 70 thereof make it clear that the country should not (except in the circumstances specified in Article 70(6)) be without a duly constituted Parliament for a period exceeding 3 months.

61. Several other reasons why it is imperative that Parliament is recalled or reconvened immediately are set out below.

A. Public Finance

62. On 23rd October 2019 (prior to the Presidential Election and under the previous Government) Parliament passed a Vote on Account to cover expenses from the 1st January 2020 to 30th April 2020, or until the date of passing an Appropriation Act for 2020, whichever came sooner.

A copy of the Resolution made under Article 150(2) of the Constitution (without schedules) obtained from https://www.parliament.lk/ is annexed hereto marked as P24 and pleaded as part and parcel hereof.

63. However, after forming a new government following the Presidential Elections, a full budget (Appropriation Bill) was not presented for the fiscal year 2020.

64. Thus, the Petitioner states that the financial appropriations approved by Parliament will only continue until 30th April 2020.

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65. Parliament has full control over public finance (per Article 148), which needs to be utilised in a transparent manner and in trust for the People.

66. Article 150(3) envisages one of the limited exceptions to the general principle set out above. It provides:

“Where the President dissolves Parliament before the Appropriation Bill for the financial year has passed into law, he may, unless Parliament shall have already made provision, authorize the issue from the Consolidated Fund and the expenditure of such sums as he may consider necessary for the public services until the expiry of a period of three months from the date on which the new Parliament is summoned to meet.”

67. Accordingly, the circumstances under which the President is empowered to act under this provision are:

(a) Where Parliament stands dissolved prior to the Appropriation Bill for the financial year being passed into law; and

(b) Parliament has not already made provision…;

and the extent of the President’s powers under such circumstances, are that he may authorise the issue from the Consolidated fund and the expenditure of such sums as he may consider necessary for the public services until the expiry of a period of three months from the date on which the new Parliament is summoned to meet.

68. Accordingly, the Petitioner states that Article 150(3) permits a limited exception to the rule, to enable the President to expend limited amounts of money for a limited period of time. It is in the nature of a stop-gap measure, to enable public services to function until the new Parliament is able to meet and enact an Appropriation Act in accordance with the regular procedure.

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69. The Petitioner states that on or about 21st March 2020, the President sought to place reliance on Article 150(3), and purportedly approved a “mini-budget” (‘Vote on Account’) for expenses until May 2020.

Copies of the relevant pages of the ‘Pre-Election Budgetary Position Report 2020’ issued by the Secretary, Ministry of Finance, Economic and Policy Development (obtained from http://www.treasury.gov.lk/documents/10181/829992/Pre- Election+Budgetary+Position+Report-2020-20200323-2/d489aa0a-edb8-47e4- bab0-af51b68d2132) is annexed hereto marked as P25 and is pleaded as part and parcel hereof.

A screenshot of news item appearing in Economy Next (obtained at https://economynext.com/sri-lanka-makes-mini-budget-till-may-2020-under- presidential-powers-60657/ ) is annexed hereto marked as P26 and is pleaded as part and parcel hereof.

70. The Pre-Election Budgetary Position Report 2020 (P25) inter alia stated that:

“His Excellency, the President proclaimed to dissolve Parliament on March 02, 2020 by Extraordinary Gazette Notification No. 2165/8. Accordingly, as per the Article 150 (3) of the Constitution of Sri Lanka, His Excellency the President may “... authorise the issue from the Consolidated Fund and the expenditure of such sums as he may consider necessary for the public services until the expiry of a period of three months from the date on which the new Parliament is summoned to meet.” As such, Vote on Account for three months commencing from March 06, 2020 has been prepared. The total provision of Rs. 1,229 billion has been provided for the Government expenditure comprising Rs. 715 billion for recurrent expenditure and Rs. 150 billion for capital expenditure which includes the spillover expenditure from 2019. Rs. 360 billion has been allocated for the loan repayment. The estimated Government expenditure for the respected period is Rs. 420 billion.”

71. The Petitioner respectfully states that the said action is unconstitutional and ultra vires the powers of the President, inasmuch as inter alia Parliament has already

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made provision for the period upto 30th April 2020, and in any event Article 150(3) can only be relied on for matters relating to public services, and does not extend to other expenditure or payments.

72. Therefore, it is mandatory that Parliament is in place to ensure that finances necessary to battle COVID-19 are lawfully and constitutionally approved.

73. The Petitioner states that on the 7th of April 2020 the Prime Minister made a special statement in which he inter alia stated;

“අ ෙමපමණ දල ෙව කරලා ජනතාවට සහන ෙ

පාෙෙව අයවැය සමත කරෙගන ෙනෙව. ෙ ෙව එකව කරන ජනාපමාට පාෙෙ සහය ගන ඉඩ ලැෙ නෑ.

පාෙව වා හන ක රජෙ කට පවවාෙගන යන අ අයවැය සමත කරගන ය අවථාෙ අපට පාෙෙ

සහාය ෙ නෑ. එබ තවය යටෙ නැවත පාෙව ෙ කවර රෙයජනයද යලා පරමාපය බලය ෙයන ජනතාව

දැ අ කාෙග අහනවා.”

A screenshot of a news item containing the Prime Ministers speech published in News.lk (government official news portal) (obtained at https://sinhala.news.lk/news/world-2/item/37802-2020-04-07) is annexed hereto marked as P27 and is pleaded as part and parcel hereof.

74. However, the Petitioner states that this position in incorrect and the opposition did not reject the said vote on account, but only objected to the raising of the debt- ceiling / limit on borrowing on the basis that it would potentially have resulted in the country falling into a debt trap. The main opposition (UNP) was willing to approve the expenditure component of the Resolution.

A screenshot of an news item appearing in Daily FT (obtained at http://www.ft.lk/top-story/Govt--abandons-move-to-get-additional-funds-through-

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Parliament/26-696101 ) is annexed hereto marked as P28(a) and pleaded as part and parcel hereof. Screenshots of news articles containing responses to the Prime Ministers statement made by the Former opposition leader and a former Minister published in EconomyNext and the Island (obtained at https://economynext.com/sri-lanka- mini-budget-supplementary-allocations-were-not-opposed-only-debt-hike- opposition-53102/ and http://www.island.lk/index.php?page_cat=article- details&page=article-details&code_title=221118 respectively) are annexed hereto marked as P28(b) and P28(c) and are pleaded as part and parcel hereof.

B. Limitations on the response to COVID–19

75. The Petitioner states that both a declaration of a State of Emergency under the Public Security Ordinance, or the declaration of a State of Disaster under the Sri Lanka Disaster Management Act No. 13 of 2005 need to be approved by Parliament within a specified period of time. The President has not sought to act under either of these two statutes.

76. The Petitioner states that unless Parliament is recalled or reconvened, the [1A Respondent] will not be able to exercise these powers when dealing with the COVID-19 outbreak, which could seriously hinder the country’s response to the spread of the virus.

77. A de facto curfew was imposed island-wide, with the curfew being lifted periodically in certain districts, but remaining indefinitely in others (including in Colombo).

78. The police have, as at the date of this petition, arrested and detained numerous curfew violators. The Petitioner states that such action is without any legal basis, because the President has not acted under any of the above statutes, nor has he sought to explain under what authority he has imposed this de facto curfew.

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Screenshots of news items appearing in ColomboPage and News.lk (obtained at http://www.colombopage.com/archive_20A/Apr07_1586231509CH.php and https://www.news.lk/news/political-current-affairs/item/29951-cid-has- commenced-investigations-regarding-rumour-mongers-dig-ajith-rohana) are annexed hereto marked as P29(a) and P29(b) respectively and are pleaded as part and parcel hereof.

79. It is unknown how long it will take to control the spread of the virus, as controlling it is dependent on various factors, including how effectively other Nations address and prevent its spread. The Director General of Health Services has stated that the number of cases could in fact continue to rise. As of 30th April 2020, Sri Lanka had 663 confirmed cases of COVID-19, with 502 patients under medical care and 7 deaths. As of 3rd May 2020, Sri Lanka had 718 confirmed cases of COVID-19, with 527 patients under medical care and 7 deaths.

A screenshot of news item appearing in DailyNews.lk (obtained at http://www.dailynews.lk/2020/04/05/local/215854/covid-19-positive-cases-can- increase-1400) is annexed hereto marked as P30(a) and is pleaded as part and parcel hereof.

Screenshots of news item appearing in Newswire.lk (obtained at http://www.newswire.lk/2020/04/30/april-30th-10-30-pm-15-patients-recovered- 14-patients-today-total-663/ and http://www.newswire.lk/2020/05/03/13-covid19- patients-today-total-infected-718-active-patients-527/) are annexed hereto marked as P30(b) and P30(c) pleaded as part and parcel hereof.

80. Accordingly, the Petitioner states that 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.

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81. The Petitioner further states that 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 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.

82. On or about the 27th of April 2020, Sajith Premadasa (Leader of the Opposition and Leader of Samagi Jana Balawegaya), Ranil Wickremesinghe (Leader of the UNP), R Sampanthan (Leader of Tamil National Alliance), Rishad Bathiudeen (Leader of ACMC), Rauf Hakeem (Leader of SLMC), Patali Champika Ranawaka (Leader of JHU) and Mano Ganesan (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 hereto marked as P31 and pleaded as part and parcel hereof.

83. 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 hereto marked as P32 pleaded as part and parcel hereof.

VIOLATION OF FUNDAMENTAL RIGHTS

84. The Petitioner states that his Fundamental Rights, and the Fundamental Rights of the citizens of the Country are infringed inasmuch as inter alia;

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A. The Petitioner is 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 the Petitioner’s rights under Article 12(1) of the Constitution, and amounts to a continuing infringement thereof;

B. Public money is sought to be expended without the input or approval of elected representatives (i.e. Parliament), in infringement (and continuing infringement) of the provisions of the Constitution, thus resulting in an infringement (and continuing infringement) of Articles 150(3), 150(1)-(2), 148, 12(1), and Article 4 read with 3 of the Constitution;

C. The President by dissolving Parliament by the dissolution proclamation (P5) in circumstances where the threat posed by the coronavirus was known, 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 the Petitioner and the citizens of Sri Lanka by Article 12(1) of the Constitution.

D. The President by failing to rescind the dissolution proclamation (P5) prior to the commencement of the Nominations Period on 12th March 2020, 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

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People, and has thus and otherwise infringed the fundamental rights guaranteed to the Petitioner 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;

E. The President by failing to rescind the dissolution proclamation (P5) simultaneously with the imposition of the de facto curfew on 20th March 2020, 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 the Petitioner 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;

F. The President by failing to rescind the dissolution proclamation (P5) simultaneously with the decision of the Election Commission (P18) 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 the Petitioner 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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G. The Petitioner also fears imminent infringement of his 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.

85. The Petitioner states that if the dissolution proclamation (P5) is not determined to be null and void and / or rescinded and / or Parliament is not recalled or reconvened immediately irreversible harm will be caused to the Fundamental Rights of the Petitioner and the citizens of Sri Lanka.

86. The Petitioner states that the acts and / or omissions of the Respondents herein complained of amount to continuing infringements of the Fundamental Rights of the Petitioner and the citizens of Sri Lanka.

87. The Petitioner states that if the interim relief prayed for is not granted grave and irreparable harm and damage will be caused to the Petitioner and the citizens of Sri Lanka.

88. The Petitioner respectfully seeks the indulgence of Your Lordships' Court to reserve his 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.

89. The Petitioner states 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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90. The Petitioner respectfully states that he was prevented from sooner coming before Your Lordships’ Court as he was 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.

91. The Petitioner states that he has not previously invoked the jurisdiction of Your Lordships’ Court previously in respect of matters herein pleaded.

WHEREFORE the Petitioner respectfully prays that Your Lordships’ Court be pleased to:

(a) Grant the Petitioner leave to proceed with this Application under Articles 10, 12(1), 13(1), 13(2), 13(6), 14(1)(a), 14(1)(b), 14(1)(c), 14(1)(e), 14(1)(g), 14(1)(h) and (14(1)(i) in the first instance;

(b) Declare that failure to ensure the functioning of a duly constituted Parliament amounts to a violation of Article 4 of the Constitution, and inter alia an infringement of the fundamental rights guaranteed to the Petitioner and the citizens of Sri Lanka under Article 12(1) of the Constitution, and amounts to a continuing infringement thereof.

(c) Declare that the dealing with and / or expending of public finances save as expressly provided in Article 150(3), (i.e. only for public services, and AFTER 30th April 2020), would amount to an infringement (and continuing infringement) of the fundamental rights guaranteed to the Petitioner and the citizens of Sri Lanka under 12(1), (read with Articles 148, 150 and Article 4 read with 3) of the Constitution;

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(d) Declare that the President by dissolving Parliament by the dissolution proclamation (P5) in circumstances where the threat posed by the coronavirus was known, 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 the Petitioner and citizens of Sri Lanka by Article 12(1) of the Constitution.

(e) Declare that the President, by failing to rescind the dissolution proclamation (P5) at least by 20th March 2020, has acted in a grossly unreasonable and irrational manner, actuated by mala fide political considerations, and thus acted in breach of his constitutional obligation 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 that his inaction thus and otherwise amounts to an infringement and continuing infringement of the fundamental rights guaranteed to the Petitioner and citizens of Sri Lanka by Article 12(1) of the Constitution;

(f) Declare that the President, by failing to rescind the dissolution proclamation (P5) simultaneously with the decision of the Election Commission (P18) to postpone the Election to 20th June 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 that his inaction thus and otherwise amounts to an infringement and continuing

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infringement of the fundamental rights guaranteed to the Petitioner and citizens of Sri Lanka by Article 12(1) of the Constitution;

(g) Declare that any attempt to conduct an Election prior to the satisfactory containment of the COVID-19 crisis, and prior to ensuring the ability to conduct a free and fair election (including the ability to campaign) constitutes an imminent infringement of the fundamental rights of the Petitioner and citizens of Sri Lanka, guaranteed by Articles 14(1)(a), 14(1)(b), 14(1)(c), 12(1), and 10 (read with Article 4(d) and (e), and Article 3) of the Constitution;

(h) Declare that the Proclamation dissolving Parliament published in Gazette Extraordinary No. 2165/8 dated 2nd March 2020 (P5) was void ab initio and / or ceased to be in effect from or after 20th March 2020 and / or 20th April 2020 and / or shall be considered null and void with effect from such date and / or from such other date as determined by Your Lordships’ Court;

(i) In the alternative to (h) above, direct the President of the Republic to cancel and / or rescind the Proclamation dissolving Parliament published in Gazette Extraordinary No. 2165/8 dated 2nd March 2020 (P5) forthwith, and further direct that in the event of the President not rescinding and / or cancelling the said Proclamation, Proclamation dissolving Parliament published in Gazette Extraordinary No. 2165/8 dated 2nd March 2020 (P5) shall be deemed to have been rescinded and / or cancelled within 2 days of the Order of Your Lordships’ Court, or such other appropriate Order;

(j) In the alternative to (h) and (i) above, direct the President of the Republic to summon Parliament in terms of Article 70(7) within such number of days of the Order of Your Lordships’ Court as Your Lordships’ Court shall determine, and further direct that in the event of the President not summoning Parliament in terms of Article 70(7) as aforesaid, Parliament shall be deemed to have been

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summoned to meet in terms of Article 70(7), on a specified day after the Order of Your Lordships’ Court, or such other appropriate Order;

(k) Issue an Interim Order suspending the Proclamation dissolving Parliament published in Gazette Extraordinary No. 2165/8 dated 2nd March 2020 (P5) and the validity thereof, and restraining the Respondents, their agents and servants from relying on the said Proclamation, or such other appropriate Order, until the hearing and determination of this Application;

(l) Issue an Interim Order restraining the 2nd – 4th Respondents (Election Commission), their agents and servants, from taking steps towards conducting the election and / or issuing a new date for the conduct of the General Election, prior to the satisfactory containment of the COVID-19 crisis, and prior to ensuring the ability to conduct a free and fair election (including the ability to campaign), or such other appropriate Order, until the hearing and determination of this Application;

(m) Grant costs;

(n) Grant such other and further reliefs as to Your Lordships’ Court seems meet.

Attorney-at-Law for the Petitioner

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