Supreme court rules election postponement illegal

[TamilNet, Wednesday, 27 January 1999, 16:15 GMT]
The Sri Lankan supreme court decided unanimously today that the postment of elections to five provincial councils by the Sri Lankan government last year was invalid in law. The elections to the Uva, Sabaragamuwa, Western, the North central and the Central provincial councils were scheduled to be held on August 28.

The Sri Lankan President postponed the polls indefinitely by invoking the provisions of the Public Security Ordinance on the grounds that the security situation at the time did not permit the polls.

The government argued that troops and Police have to be pulled out from military operations against the Liberation Tigers in the northern and eastern parts of the island for the conduct of the polls in the five provinces.

Human Rights lawyer J. C. Weliamuna (2nd L) speaks with reporters outside the Sri Lankan Supreme Court in Colombo after winning a case against the state for postponing elections to five provincial councils. photo-AFP

Withdrawing security forces personnel in numbers adequate for the supervision of the elections from the theatre of operations, it said, would jeopardize national security as the war against the Liberation Tigers was at a critical penultimate phase; and hence, according to the Sri Lankan government, the postponement was necessary.

The Deputy Minister for Defence General Anuruddha Ratwatte said at the time that the provincial elections could be held after November 1998, when his troops were scheduled to open the highway to Jaffna, routing the Liberation Tigers.

The three member bench of Sri Lanka's supreme court said in its judgement, delivered by Justice Mark Fernando with Chief Justice G.P.S de Silva and Justice D.P.S Gunasekera agreeing, that the legal grounds on which the (Sri Lankan President) had postponed the elections were invalid and constituted an infringement of the fundamental rights of the petitioners Waruna Karunatilaka (Reuters TV) and Sunandha Deshapriya (editor of Sinhala weekly Yukthiya) of the Free Media Movement.

The bench directed the first respondent, Sri Lanka's Commissioner of Elections to "take immediate action to fix within four weeks from today in respect of all five elections a) new date or dates not later than four weeks from today for the issue of postal ballot papers and b) a new date or dates of poll not later than three months from today."

The petitioners had cited the Commissioner of Elections as the first respondent and twelve of his officials as the other respondents in their case for Article 35 (1) of the Sri Lankan constitution stipulates "While any person holds office as President, no proceedings shall be instituted against him in any court or tribunal in respect of anything done or omitted to be done by him either in his official or private capacity".

The case was heard before the supreme court on December 4 and 7, 1998.

The bench pointed out that the Inspector General of Police had told the Elections Commissioner, according to the minutes of a meeting convened on June 25,1998 by the latter to discuss the security for the polls in the five provinces, that he could provide the Police forces necessary to ensure the smooth conduct of the elections.

It also drew attention to the fact that the Presidential polls had been held in the North - eastern province while the Public Security Ordinance that the President invoked to postpone the provincial elections was in force.

The Supreme court said in its judgement "The previous proclamation under section 2 made one month before had brought the provisions of part 2 of the PSO into operation in the Northern and Eastern provinces and in some parts of seven (out of the 17) districts in those seven provinces."

Indeed, it was the petitioner's contention - which was not disputed- that for a considerable period before August 1998, the proclamation made from time to time under section 2 applied mainly to those 2 provinces, and not to the whole of Sri Lanka. The petitioners also averred that the 1994 Presidential election had been held while a similar proclamation had been in force."

Section 2 of Article 155 of chapter XVIII on Public Security of the Sri Lankan Constitution stipulates "The power to make emergency regulations under the Public Security Ordinance or the law for the time being in force relating to public security shall include the power to make regulations having the legal effect of overriding, amending or suspending the operation of the provisions of any law, except the provisions of the constitution."

The judgement is seen by legal experts as a landmark, particularly with regard to the unwarranted application of Sri Lanka's Public Security Ordinance for achieving political objectives.

Some of them deplored that no politician or interest group in the northern and eastern parts of the island which are most affected by the arbitrary use of the PSO has ever challenged it in the Supreme Court as a litmus test of Sri Lanks's legal system vis-a-vis the Tamils.