Presidential Election Petition:

Order reserved on preliminary objections

Sarath MALALASEKERA

The Supreme Court yesterday reserved its order in the preliminary objections in the Presidential Election Petition and directed the Petitioner and the Respondents to submit their written submissions within two weeks.

The Bench comprised Chief Justice Asoka de Silva, Justice Dr. Shirani A. Bandaranayake, Justice K. Sripavan, Justice P.A. Ratnayake PC and Justice S.I. Imam.

At the outset Senior Attorney Upul Jayasuriya, Senior Counsel for petitioner Sarath Fonseka submitted that the election of a candidate to the office of President shall be declared to be void on an election petition on any of the grounds which may be proved to the satisfaction of the Supreme Court.

Jayasuriya emphasised that the elections should be void on the grounds of general bribery, general treating and general intimidation or other misconduct or circumstances, whether similar to those before enumerated where the majority of electors may have been prevented from electing the candidate of their choice.

An election petition is not liable to be dismissed in limine merely because full particulars of the corrupt practice alleged in the petition are not set out, the senior counsel said.

To prove alleged charges in the petition, the petitioner should be given an opportunity to place evidence before court. We will bring all those evidence at the trial stage. The petitioner was unable to get information in respect of those who stormed into the counting centres on the day of the Presidential elections. The Elections Commissioner should be aware what happened at the counting centres in Polonnaruwa and Matale, he said.

The Senior Counsel said that non compliance with the provisions of the Act relating to elections, if it appears that the election was not conducted accordance with the principles laid down in such provisions in such non compliance would deemed to have affected the result of the election.

Senior Attorney AJ Niles, senior counsel for the tenth respondent who appeared with Attorney Suren Fernando submitted that an election meant the public choosing some person to be the head of the State.

Parliamentary Elections select several MPs but the Presidential Election selects only one candidate by the people, he said.

President’s Counsel DS Wijesinghe, Senior Counsel for the first respondent President Mahinda Rajapaksa replying said that the petitioner had not answered the validity of the allegations and not submitted mandatory facts in relation to the petition. The President’s Counsel submitted that all charges failed due to total omissions of full particulars regarding the allegations levelled against the respondents in the petition. The petitioner had not disclosed mandatory facts to act by the respondents. The petitioner in his petition stated that the last Presidential Elections was held under duerests and several incidents of bribery, corruption and threats. But not a single charge had been proved beyond reasonable doubt, the President’s Counsel said.

Solicitor General, President’s Counsel Priyasath Dep appeared for the Election Commissioner.

President’s Counsel DS Wijesinghe, President’s Counsel Nihal Jayamanna, President’s Counsel SS Sahabandu, President’s Counsel Palitha Kumarasinghe, President’s Counsel Jayatissa de Costa, Senior Attorney Upali Senaratne, Kaushalya Molligoda, Chamila Talagala and Isuru Somadasa instructed by Athula de Silva appeared for the first respondent President Mahinda Rajapaksa.

SL Gunasekera, Manohara de Silva, Kushan de Alwis, Gamini Marapona and A.J.Niles appeared for some of the respondents..

The Petitioner Sarath Fonseka cited twenty six Respondents including President Mahinda Rajapaksa, other 21 candidates, Elections Commissioner Dayananda Dissanayake, three agents and Minister Wimal Weeraswansa. On a Court order Petitioner Sarath Fonseka was present in Court yesterday during the proceedings. Attorneys Rasika Harischandra, Upali Samaraweera, Naveen Marapona Suren Fernando appeared for some of the respondents.

Senior Attorney Upul Jayasuriya with Attorneys Madubahsa Ariyadasa, Kelum Kumarasinghe and Sandamal Rajapaksa instructed by Asoka Somaratne Associates appeared for the petitioner.