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Petition Filed in Court (SC/Writs/05/2015)

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Petition Filed in Court (SC/Writs/05/2015) IN THE SUPREME COURT OF DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an application under Article 125, 140 read with Article 104H (1) of the Constitution of Republic of Sri Lanka for Mandates in the nature of Writ of Certiorari and Mandamus Nagananda Kodituwakku 99, Subadrarama Road Nugegoda Petitioner Vs SC/WRITS/05/2015 1. Commissioner of Elections Elections Secretariat, P.O. Box 02, Sarana Mawatha, Rajagiriya 2. General Secretary – UPFA 307, T B Jayah Mawatha Colombo 10 3. General Secretary United National Party 400, Sirikotha Pitakotte, Kotte 4. General Secretary People’s Liberation Front 464/20, Pannipitiya Road, Pelawatta, Battaramulla 5. General Secretary, Ilankai Tamil Arasu Kadchi 30, Martin Road Jaffna 6. U J Tilanga Sumathipala Member of Parliament (UPFA) Parliament Approach Road Sri Jayawardenepura Kotte 7. B Mahinda Samarasinghe Member of Parliament (UPFA) Parliament Approach Road Sri Jayawardenepura Kotte 8. S B Dissanayake Member of Parliament (UPFA) Parliament Approach Road Sri Jayawardenepura Kotte 9. Lakshman Yapa Abeywardena Member of Parliament (UPFA) Parliament Approach Road Sri Jayawardenepura Kotte 10. Angajan Ramanathan Member of Parliament (UPFA) Parliament Approach Road Sri Jayawardenepura Kotte 11. A M H M Lebbe Member of Parliament (UPFA) Parliament Approach Road Sri Jayawardenepura Kotte 12. G Vijith Wijayamuni Zoysa Member of Parliament (UPFA) Parliament Approach Road Sri Jayawardenepura Kotte 13. M H M Navavi Member of Parliament (UNP) Parliament Approach Road Sri Jayawardenepura Kotte 14. Sunil Handunnnethi Member of Parliament (JVP) Parliament Approach Road Sri Jayawardenepura Kotte 15. B N R Weerakoon Member of Parliament (JVP) Parliament Approach Road Sri Jayawardenepura Kotte 16. Attorney General Attorney General’s Department Colombo 11 Respondents To: THE HONOURABLE CHIEF JUSTICE AND THE OTHER JUDGES OF THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA On this 13th day of Oct 2015 The Petition of the Petitioner above-named appearing in person, states as follows:- Parties to the Application 1. The Petitioner states that he is a Attorney-at-Law (Sri Lanka) & Solicitor in the UK and a citizen of both countries and a Public Interest Litigation Activist. 2. The 1st Respondent is the Commissioner of Elections and the 2nd Respondent is the General Secretary of the United People's Freedom Alliance (UPFA), the 3rd is the General Secretary of the United National Party (UNP), 4th Respondent is the General Secretary of the People’s Liberation Front (PLF), the 5th Respondent is the General Secretary of the Ilankai Tamil Arasu Kadchi, 6 to 15th Respondents are the candidates who were rejected by the people at the General Election – 2015 but nominated by 2nd 3rd 4th and 5th Respondents and elected as Members of Parliament through the National List by the 1st Respondent and the 16th Respondent is the Attorney General of the Republic of Sri Lanka and the 16th Respondent is named as a party to this application for the purpose of serving notice only. 3. The Petitioner makes this instant application under and in terms of Article 125, 140 read with Article 104H(1) of the Constitution of the Republic of Sri Lanka. 4. In this instant application, the Petitioner seeks to challenge, inter alia; a) that the clause inserted in the Article 99A through the 14th Amendment to the Constitution, which reads as “… being persons whose names are included in the list submitted to the Commissioner of Elections under this Article or in any nomination paper submitted in respect of any electoral district by such party or group at that election…” on the premise that the said clause violates sovereign rights of the People which includes the power of Franchise enshrined in Article 3 of the Constitution, which cannot be taken away or denied without a mandate obtained from the people at a referendum (Article 83) and upon a certificate by the President being endorsed on the Bill and therefore in terms of Article 82 (6) of the Constitution, the said provision shall NOT be deemed to, amend, repeal or replace the Constitution or any provision thereof, or be so interpreted or construed, as it has been enacted in violation of and bypassing the mandatory statutory requirements as set out in Article 82, 83 of the Constitution. b) to have the appointments of defeated/rejected candidates (6th to 15th Respondents) at the General Election - 2015 under the said clause, as elected Members of Parliament by the 1st Respondent from the nominations made by the 2nd, 3rd, 4th and 5th Respondents under Article 99A of the Constitution, quashed Dissolution of the Parliament 5. The Petitioner states that on 26th June 2015 the Parliament was dissolved by the Extant Executive President, proclaiming the nomination period (beginning from 6th July 2015 to 13th July 2015) and fixing a date for the Parliamentary Elections to be held on 17th August 2015. A true copy of the gazette extraordinary No 1920/38 dated 26th June 2015 published by the Secretary to the Executive President marked P1 is attached hereto. Calling for nominations for the Parliamentary Elections - 2015 6. The Petitioner states that within the nomination period the recognised Political parties had submitted their nominations for the General Elections of the Members of the Parliament to the 1st Respondent. And on 13th July 2015, the 1st Respondent gazetted (No 1923/3) the names of those candidates for the information of the voters. The part of the true copy of the said Government Gazette No 1923/3 dated 13th July 2015 published by the 1st Respondent, which is relevant to this application marKed P2 is attached hereto Submission of National List Candidates 7. The Petitioner states that as required by the Article 99A of the Constitution, the recognised political parties had submitted their lists of persons qualified to be elected as Members of Parliament during the Nomination Period, to the 1st Respondent, which the 1st Respondent gazetted (No 1923/2 of 13th July 2015) for the information of the voters so that they would know that some of the candidates in the list so published by the 1st Respondent were likely to be elected as MPs through the National List. A true copy of the Gazette Extraordinary No 1923/2 dated 13th July 2015 published by the 1st Respondent marKed P3 is attached hereto. 8. The Petitioner states that on 17th August 2015 the General Election was held as scheduled and having considered PLF’s anti-corruption initiative and its declared commitment to restore the Rule of Law sans corruption, with probably the best National List presented to the Constituents for their consideration, the Petitioner voted for the People’s Liberation Front at the General Election - 2015. A true copy of the Poling Station Card issued by the 1st Respondent (and cancelled after casting the vote by the Presiding Officer at the Poling Station) marKed P4 is attached hereto 9. The Petitioner states that thereafter on 19th Aug 2015, the 1st Respondent declared the final results of the Parliamentary Election – 2015 with the names of the successful candidates elected by the People which was published by the Government Gazette NO 1928/3 of 19th August 2015 A true copy of the Government Gazette No 1928/3 dated 19th August 2015 published by the 1st Respondent marKed P5 is attached hereto 10. The Petitioner states that thereafter, further to a Notice served by the 1st Respondent, the 2nd, 3rd 4th and 5th Respondents submitted their respective lists of nominees under Article 99A of the Constitution, to fill the seats, if any, that could be allocated to them through the National List. The combined list so presented by the political parties did contain the names of several candidates who had been defeated at the General Election – 2015. Thus their names did not appear in the gazette published by the 1st Respondent marked P5. Those names are given below. Name Political Party Electoral-Distric U J Tilanga Sumathipala UPFA Colombo B Mahinda Samarasinghe UPFA Kalutara S B Dissanayake UPFA Kandy Lakshman Yapa Abeywardena UPFA Matara A Ramathanathan UPFA Jaffna A M H M Lebbe UPFA Batticaloa G Vijith Wijayamuni Zoysa UPFA Monaragala M H M Navavi UNP Puttalam Sunil Handunnethi PLF Matara Kathiragamathamby Thurairathasingham ITAK Trincomalee Shanthi Srikandarasa ITAK Vanni 11. The Petitioner states that the 1st Respondent accepted these names, so nominated by the respective political parties and accordingly the names of several defeated candidates were declared as MPs elected through the National List. The Petitioner states that on 21st of Aug 2015 these names were published in the Gazette No 1928/25 dated 21st August 2015 and the Gazette No 1929/4 dated 24th Aug 2015. The Petitioner states that amongst those names published in the Gazette, the name of Sarath Chandrasiri Mayadunne, the former Auditor General, from the PLF’s National List was also included. A true copy of the Government Gazette No 1928/25 dated 21th August 2015 and the Gazette No 1929/4 dated 24th Aug 2015 published by the 1st Respondent marked P6 and P7 are attached hereto 12. The Petitioner states that the issuance of the P6 and P7 by the 1st Respondent was based on the lists of names submitted by the 2nd 3rd 4th and 5th Respondents, which had contained the names of several candidates rejected by the constituents at the General Election – 2015. This is in total disregard of the National List gazetted (P3) by the 1st Respondent and tantamount to blatant abuse of people’s sovereign powers, including the power of franchise enshrined in Article 3 of the Constitution. The Petitioner states that in this backdrop the people genuinely feel that they have been betrayed and their intelligence has been insulted. The public outcry became so intense as their sovereign powers had been taken away by the 2nd, 3rd, 4th and 5th Respondents, who had not been given a mandate by the people at a referendum.
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