Petition to notice Elections Commissioner not to fill his seat:

SB's appeal dismissed

BY WASANTHA Ramanayake

THE Court of Appeal yesterday refused an application to issue notice of the Parliamentary Secretary General and the Elections Commissioner in the writ application filed by parliamentarian S. B. Dissanayake seeking to prevent them from taking any further steps with regard to filling the parliamentary seat falling vacant by his imprisonment.

Solicitor General Palitha Fernando at the first instance resisted the application to issue notice on the respondents, the Parliamentary Secretary General and the Elections Commissioner. The Bench comprised Justices K. Sripavan and Ranjith de Silva.

Delivering the judgement Justice K. Sripavan stated that the petitioner S. B. Dissanayake was served with a Rule by the Supreme Court in 2004, requiring him to show cause as to why he should not be punished under the Article 105(3) of the Constitution for making a contemptuous statement at Habaraduwa on November 3, 2003.

The Supreme Court delivered its judgment affirming the rule served on the petitioner, convicted him for an offence of Contempt of Court and sentenced the petitioner for a term of two-year RI.

Justice Sripavan observed that Court of Appeal should without any reservations accept and follow the judgment of the properly constituted Five Judge Bench of the Supreme Court. Justice Sripavan held that the Court of Appeal had no power to inquire into or pronounce upon the judgement delivered by the Supreme Court on December 7, convicting the petitioner for an offence of the Contempt of Court under the Article 105 (a).

According to the judgement, the President's Counsel K.N. Choksy for the petitioner contended that the Article 89 requires to follow three essential pre-conditions in the disqualification of an MP i.e. there must be a conviction by a court, the conviction must be for an offence, and the person convicted must be serving a sentence of imprisonment for a term not less than six months and the law must make such offence punishable with imprisonment for period not less than two years.

He noted that the two pre-conditions; i.e., there must be a conviction by a court, the conviction must be for an offence had been satisfied by virtue of the Supreme Court judgement dated December 7, to disqualify the petitioner.

The court further noted that the third pre-condition that the person convicted must be serving a sentence of imprisonment for a term not less than six months and the law must make such offence punishable with imprisonment for period not less than two years had also been satisfied since the Supreme Court had unlimited power and jurisdiction to punish persons for contempt as the court may deem fit and the punishment imposed on the petitioner attracted two years RI.

He further noted that to-date there was no evidence before the court that steps likely to have been taken by the respondents to have another person elected.

According to the judgement petitioner had made the application on the basis that he verily believe that the first respondent Parliamentary Secretary General was taking steps to inform the second respondent Elections Commissioner to have another person declared elected in the place of the petitioner on the grounds that the seat of the petitioner been vacated in terms of Article 66 (d) of the Constitution as a result of the petitioner had become disqualified under the Article 89(d) read with Article 91 (a) of the Constitution.

The Petitioner stated that he was not liable to be disqualified from being an elector within the meaning of Article 89 or any other Provisions contained in the Constitution and as such the respondents were not entitled in law to take steps under the Parliamentary Election Act.

The petitioner sought to writ of prohibition preventing the respondents from taking any steps to have the seat held by the petitioner filled in terms of the Act.

K. N. Choksy PC, with Shibly Azis PC, Srinath Perera PC and Daya Pelpola and V. K. Choksy instructed by Samararatne Associates appeared for S. B. Dissanayake.

Deputy Solicitor General Palitha Fernando with State Counsel N. Idroos appeared for the Attorney General.