Constitutional Uncertainties Explained
Whether or not the Supreme Court will disqualify her, it has to be a question on facts; not a question of law. - Dr. Nihal Jayawickrama
With Geetha Kumarasinghe’s dual citizenship issue, cropped up many uncertainties on the provisions in the constitution with regard to a situation such as this. Dr. Nihal Jayawickrama, a Constitutional expert and the former Permanent Secretary to the Ministry of Justice, explained that according to the law there would not be a new election for the Galle District and if disqualified the candidate on the list with the next highest number of votes would be elected.
Speaking of the disqualification of an MP, Dr. Jayawickrama said, “The Constitution shows us who is qualified and who is not to seek elections, and among them is a category of people who are disqualified from seeking elections in Parliament or to seek office for Presidency. And this category includes citizens of Sri Lanka who are also a citizen of another country. So such a person is disqualified from being elected from sitting and voting in the House. And if that person has sat in Parliament, then there’s a penalty for Rs. 500 a day for every day that he/ she sat in Parliament. This is clearly set out in the Constitution”
He further cited that there are cases when an election could be deemed void and a new election would be conducted, however, it was not done in the present case. “According to Section 92 of the Parliamentary Elections Act of 1981, there are two ways in which elections can be set aside. You can file an election petition after the election is over. It says that the election in respect to any electoral district can be declared to be void on an election petition filed under grounds that one candidate was disqualified at the time of his or her election. Then you have to hold a fresh election for that particular district. Otherwise the district goes unrepresented. However this did not happen against Kumarasinghe.”
He further added that, “There’s another provision in that law, which is Section 115 of the Parliamentary Elections Act which states, “The death, or withdrawal, or disqualification under any written law for election or for sitting and voting as a Member, whether before or after the election of the Member, of any person or persons nominated by a recognized political party or independent group for election at that election shall not invalidate or in any way affect the nomination paper of that party or group, and accordingly the candidature or election of any other person nominated by the party or group on that nomination paper shall not be invalidated by reason only of the fact of the death, withdrawal or disqualification of such person or persons” which means to suggest that the disqualification of Kumarasinghe will not invalidate the list that was submitted for that district by that party. And if one member seizes to hold office then the constitution says that the person who has got the next highest number of votes will be declared elected.”
Dr. Jayawickrama further voiced out an amendment he feels needs to be made in the constitution or the Parliamentary Elections Act, “Since the number of votes a party gets determines the number of seats they receive, a problem which is not provided for by the constitution, which may need to be looked at again, is that people vote for a list, and when you find a person who has attracted a large number of votes and is disqualified in the list, then those votes are taken into account in deciding how many seats that party is entitled to, they get bonus seats as well, depending on whether that party has got more than any other party. The point is several months or years later you find that that particular person was disqualified from seeking election and his/her name should never have been on the list then what happens to the fact that people who actually voted because of that person being on that list? Now there is nothing in the law that anticipates that kind of situation. So I think it is something that really requires some provision, because after all, the allocation of seats and the allocation of bonus seats and the national seats all depends on the number of votes that a party gets from the electoral districts throughout the island. Is it fair? Should that be the case that the list is not rejected and the whole district is not called upon to hold another election in a situation of this nature? And the strange thing is, if you file an election petition on the grounds that one of the candidates was disqualified, if that succeeds, then of course the entire district faces a fresh poll. It could have been done but they have chosen another option, which is to come much later. I suppose one consequence of coming late is what would happen to the list.”
“But as the law now stands the fact that somebody held to be disqualified at the time of the election, will not invalidate the list that is what the parliamentary elections act says. So it doesn’t have any other consequences.” he added.
Speaking of the current situation Dr. Jayawickrama said, “An election petition was not filed in this case so we are now left with the Quo Warranto application which is perfectly legitimate because it is intended to challenge a person who is occupying an office which he/she is not entitled to. So that remedy is also available that is also what they have used.”
“So then the Court of Appeal, on the facts has found that that person was not qualified to stand for election or to be elected to sit in Parliament. Then they declare that person was disqualified. The consequences of it, one has to then refer to the Constitution which says that the next person in that list should be declared elected. The Parliamentary elections Act says that the fact that somebody was disqualified before or after the election will not affect the list submitted by the party.” he said
Speaking of his analysis on the situation Dr. Jayawickrama stated that, “I think that if the supreme Court affirms the Court Of Appeal’s judgment, then Geetha Kumarasinghe would stand disqualified and the secretary of Parliament would request the Commissioner of Elections to indicate who the person is who polled the next highest number of votes, could declared elected. I don’t think anything else would follow from that. And whether or not the Supreme Court will disqualify her, it has to be a question of facts; not a question of law. That is on the basis that she is or is not a dual citizen, the courts need to be satisfied with the evidence and take a decision.”
Whether or not the Supreme Court will disqualify her, it has to be a question on facts; not a question of law On the basis that she is or is not a dual citizen, the courts need to be satisfied with the evidence and take a decision The disqualification of Kumarasinghe will not invalidate the list that was submitted for that district by that party