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| Friday, 18 July 2003 |
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by Wasantha Ramanayake The Supreme Court yesterday dismissing the Fundamental Rights application filed by the Elections Commissioner held that the Commissioner had to continue in his office, in terms of the 17th Amendment, until the Elections Commission was set up. The Court directed the Attorney General to re-examine the possibility of awarding the pension to the petitioner Dayananda Dissanayake at the age of retirement, in addition to the payments for his continuing service in the office. The Bench comprised Chief Justice Sarath N. Silva PC, Justices Dr. (Mrs.) Shirani Bandaranayake and P. Edussuriya. The Court observed that it could not make an order to establish the Commission as prayed by the petitioner since there was no time limit imposed to do so. Court further observed that continuation of the Commissioner in the Office did not attract the Article 17 and 126 of the Constitution. And it was a legal requirement for the commissioner to continue in the office. The court noted that the commissioner was caught in a Constitutional net and the court had no control over the lapses in law. State Counsel Uditha Egalahewa for the respondents submitted that retirement of the Elections Commissioner had not been contemplated at time of the drafting of the said amendment since the setting up of the said Commission was not thought to be prolonged. Counsel Elmore Perera for the Elections Commissioner submitted that the his client had to suffer in silence, since he could not retire even at the age of 100 and there would be a Constitutional crisis after his death as no election could be held without the Commissioner. The said amendment had not provided for the appointment of a new Commissioner or an Acting Commissioner. The counsel further submitted that the only way out was to appoint the Elections Commission and urged the Court to issue notice on the Constitutional Council upon whose recommendation the President would appoint the Elections Commission. State Counsel submitted that the Constitutional Council had already communicated their recommendations to the President. The petitioner complained that his Fundamental Rights were violated by the failure of the President to appoint an Elections Commission on the recommendation of the Constitutional Council, preventing him from retiring from his highly stressful office at the age of 61. He claimed that he had five heart attacks. He also claimed ten million rupees as compensation. He cited the Attorney General, the Secretary to the President, the Speaker and the Chairman of the Constitutional Council, Prime Minister Ranil Wickremesinghe, Opposition Leader Mahinda Rajapakse, H.L. de Silva PC, Dr. A.R.B. Amarasinghe, L.H.G. Weerasekera, M. Jameel, P. Sundaralingam, R. C. Karunakaran and S.S. Wijeratne, the members of the Constitutional Council, as respondents. The petitioner stated inter alia, that he was 61 years old and joined the Public Service on January 2, 1970. He served continuously in the Department of Elections since February 17, 1995 and carried out his duties with strict independence. Petitioner claimed that he sought a clarification from the first respondent the Attorney General of his retirement when he reached 60 years on April 28, 2002. He was notified that he would have to remain in office until the Elections Commission was constituted. According to the petition, petitioner shall cease to hold the office as the Commissioner of Elections once the Elections Commission was established under the 17th Amendment in terms of Article 103 of the Constitution which had come into force on October 10, 2001. Elmore Perera appeared for petitioner. State Counsel Uditha Egalahewa appeared for the respondents. |
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