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| Wednesday, 26 March 2003 |
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by Kumar Wethasinghe The Supreme Court awarded Rs. 391,000 as compensation and cost to the petitioners of all three applications, when the court yesterday held that the Commissioner of Elections and the Army Commander had acted in violation of the Fundamental Rights of the petitioners who are voters of the Batticaloa and Vanni districts, by preventing them from entering the areas in which their polling stations were situated and thereby preventing them from exercising their lawful right to vote at the 2001 general election. The Bench comprised Justices Mark Fernando, Amir Ismail and C. V. Wigneshwaran. These three applications which were virtually identical, in connection with the closing of the entrance points by the Army on the day of the said election were taken up together for hearing. The five petitioners Sothilingam Thawaneethan, Thambipillai Tangavelu, Kanapathy Pillai Singarajah, T. Alagasundaram and P. Kandasamy had cited the Commissioner of Elections Dayananda Dissanayake, Returning Officer S. Sanmudan, Lt. Gen. Lionel Balagalla, the Army Commander, Major Gen. Nanda Mallawarachchi, the IGP, the AG and 22 others as the respondents. The petitioners had pleaded that on the pretext of providing security to six VVIPs the respondents had denied their right of equality and equal protection and had infringed their fundamental rights. The six VVIPs specified as allegedly threatened by the LTTE were President Chandrika Bandaranaike Kumaratunga, the then Prime Minister Ratnasiri Wickremanayake, PA Minister Lakshman Kadirgamar, Mangala Samaraweera, Anurduddha Ratwatte and Anura Bandaranaike. The judgement delivered by Justice Mark Fernando contained that the Commissioner of Elections had hastened to make special arrangements not sanctioned by law to enable a handful of voters to vote from safety of their homes without taking any action to protect the exercise of his own right to vote. The proved infringements were in themselves were very serious, the number of voters affected were so large that the election in the Batticaloa and Vanni Districts, were neither free nor fair. The decision-making process which resulted in those infringements shrouded in secrecy, haste and bad faith. The infringements took place at a time when there was a serious erosion of public confidence in the integrity of electoral process and when it was extremely important to ensure elections were free and fair, particularly in uncleared areas. Because the citizens living in those areas needed reassurance. If peace and national reconciliation were to be realistic, that election would truly be democratic, that fundamental rights would be respected and protected, and that judicial remedies would be available for wrong doings. Accordingly the court granted petitioners of all three applications a declaration that their fundamental rights under Article 12, 14 (A), have been violated by the first and the third respondents and further the rights under Article 14(1)h, have been violated by the third respondent. The court awarded (a) a sum of Rs. 100,000 as compensation payable by the state totalling to Rs. 300,000 (b) a sum of Rs. 30,000 as cost payable by the 3rd respondent totalling to Rs. 90,000 and further awarded the petitioner of the first application Rs. 1,000 as nominal compensation, personally payable by the 3rd respondent. The court also ordered that the payments be made before May 31, 2003. J. C. Weliamuna appeared for the first petitioner. K. Kanag Iswaran PC with M. A. Sumathivan appeared for the second petitioner. Dr. Jayantha de A. Gunaratne PC appeared for the 3rd petitioner. Additional Solicitor General S. Marsoof PC with State Counsel Ms S. Barrie appeared for (1 to 5 and 28 respondents). |
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