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Nominations to PCs outside list declared illegal

by Wasantha Ramanayake

Party Secretaries or independent group leaders could not nominate a person whose name was not on the original nomination paper to fill a vacancy caused by the resignation of a Provincial Councillor, the Supreme Court held yesterday.

The Supreme Court made the order allowing two appeals by petitioner-appellants, Centre for Policy Alternatives of Colombo 7, Dr. Pakiasothy Saravanamuttu of Colombo 5, and Rohan Edirisinha of Dehiwala, who sought to quash the Elections Commissioner's declaration that the election of Samaraweera Weerawanni as a member of Uva Provincial Council and for a Quo-warranto declaring that he was not entitled to hold the Office of the Chief Minister.

Petitioner-appellants cited Election Commissioner Dayananda Dissanayake, Samaraweera Weerawanni, Chief Minister, Uva Provincial Council, General Secretary People's Alliance D.M. Jayaratne and the Attorney General as respondents. Justice Mark Fernando delivering the judgment observed that Weerawanni had been a PA member of Parliament during the nomination period for the Provincial Council Election fixed for August 28, 1998. Since he was a Member of Parliament he was not then qualified for election as a provincial council member. His name was not included in the PA nomination paper for the Uva Province but his wife's was included.

Justice Fernando, among other matters, stated that Provincial Council Elections which was postponed was re-fixed on the direction of the Supreme Court by the Election Commissioner for April 6, 1999. Weerawanni was elected as member and was later appointed as the Chief Minister of the province. On May 15, 1999, he resigned his seat in parliament and on May 21 one of the PA members elected to the council resigned.

The judge further observed that subsequent to the resignation of the said PA member Weerawanni called upon the PA General Secretary to nominate an eligible person to fill the vacancy. Jayaratne had nominated Weerawanni and on May 24, 1999, the commissioner declared him to be elected and on the same day his wife resigned from the office of the Chief Minister. On May 27, he was appointed as the chief Minister.

According to the judgement, on November 6, the Court of Appeal held that Section 65(2) of the Provincial Council Election Act empowers the secretaries of the recognised political parties which had nominated member vacating the office to nominate any eligible person to fill that vacancy even though his name had not appeared in the original nomination paper.

The Judgement said that at the commencement of the hearing the counsel for respondents submitted that since Weerawanni had ceased to hold office it would be futile to hear the appeals. However, petitioners' counsel argued that second respondent ceased to hold the office even prior to grant of leave Special Leave, which had been granted on a matter of great public importance.

"If the objection of futility is now upheld, the Court of Appeal judgment will be regarded as authoritative and finding vis-a-vis all future vacancies in any provincial council and the commissioner would be bound to act on the basis of that judgment, there by giving rise to fresh litigations.

Justice Fernando said the Court of Appeal had erred in law in its interpretation of the Section 65 of the said Act. "This court would not be acting in vain in setting aside the judgment of the Court of Appeal as it is in the public interest that the Commissioner, political parties, independent groups, candidates and voters should know with certainty the procedures for filling of vacancies in Provincial Councils," he said.

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