Centre for Policy Alternatives on 16 February, 2018

The Centre for Policy Alternatives Vs. Kabir Hashim and others SC (FR) Application No.54/2016

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The Centre for Policy Alternatives (CPA) and its Executive Director filed a Fundamental Rights application challenging the appointment of Field Marshal Sarath Fonseka to fill the vacancy created by the death of Mr. M. K. A. D. S. Gunawardana, as a Member of Parliament elected under Article 99A of the Constitution (the National List).

In accordance with Article 99A of the Constitution, CPA’s position was that a person is only entitled to be nominated to fill such a vacancy if their name was included in the district nomination papers or national list submitted by the relevant political party. Field Marshal Sarath Fonseka’s name was not included in the “national list” submitted to the Election Commission by the United National Party, or in any nomination paper submitted with respect to any Electoral District by the United National Party in the 2015 Parliamentary election.

In its Petition, CPA stated that if the appointment of a person as a Member of Parliament is contrary to the provisions of the Constitution, is a violation of several rights guaranteed under the Constitution, in particular the franchise, which is part of the sovereignty of the people. Furthermore, CPA argued that any attempt to interpret legislation in a manner contrary to the provisions of the Constitution would imperil the supremacy of the Constitution, which is a cornerstone of constitutional democracy.

Over the past two decades, CPA has filed several Public Interest Litigation cases relating to the franchise, and in particular, the right to vote. The judgments deriving from these cases have recognized the right to vote as a fundamental right and highlighted the importance of protecting it. CPA has on two previous occasions challenged attempts to appoint to Parliament and to Provincial Councils, individuals whose names were included in the nomination papers submitted for the respective elections.

The matter was taken up by the Supreme Court on May 24th 2016. The Court stated that Article 99(A) of the Constitution does not extend to cover a situation where the seat of a National List member has fallen vacant and the provisions contained in section 64(5) of the Parliamentary Elections Act No.1 of 1981 with regards to filling vacancies would apply. Therefore, the Court refused to grant leave to proceed with the case.