Article 99A: A constitutional fraud, DEW alleges in affidavit to SC

By Shamindra Ferdinando 

Former General Secretary of the Communist Party D.E.W. Gunasekera in an affidavit given to the Supreme Court in respect of the controversial Section 99A of the Constitution that dealt with National List appointments has alleged that the then Speaker, the late E.L. Senanayake, perpetrated an unprecedented constitutional fraud by signing a smuggled in 14th Amendment into the Constitution, instead of what was passed by Parliament. 

In the July 11, 2021 dated affidavit, ex-lawmaker Gunasekera said that the Speaker’s action violated Articles 82 (5), 82 (6) and 125 of the Constitution. This written declaration made under oath is a key ingredient in a petition filed by public interest litigation activist and General Secretary of Vinivida Peramuna, Nagananda Kodituwakku, against the appointment of Ven. Atureliye Rathana (42 respondent), UNP leader Ranil Wickremesinghe (43 respondent) and Basil Rajapaksa (44 respondent) on the National Lists of the Ape Jana Bala Pakshaya, UNP and SLPP, respectively. 

Referring to the first petition filed by him in this regard, lawyer Kodituwakku told The Island that a second petition on the same matter expanded the list of respondents from 12 to 45. The respondents included, members of the Election Commission, former Chairman of the EC Mahinda Deshapriya (2 respondent), who is the current Chairman of the Delimitation Commission and the Attorney General. 

Vinivida Peremuna hasn’t so far received recognition as a registered political party. According to the petitions made available to The Island, the Supreme Court has been moved in terms of Articles 82 (6), 125 and 126 of the Constitution. 

Petitioner pointed out that Ven. Rathana and Wickremesinghe had been accepted by the EC as NL members in violation of the stipulated 7 day period for such appointments, whereas US citizen Basil Rajapaksa wasn’t included in the SLPP NL nor or on any district list at the last general election.  

EC Chairman attorney-at-law Nimal Punchihewa (3 respondent) told The Island that the 20th Amendment to the Constitution enacted in Oct 2020 abolished foreign citizenship being an impediment to enter Parliament on the NL. A vacancy created by the resignation of SLPP NL member Jayantha Ketagoda (30 respondent) has been filled by Basil Rajapaksa in terms of the Section 64 (5) of the Parliamentary Election Act No 01 of 1981 as amended by the Act No 35 of 1988.  

The Parliament consists of 196 elected and 29 appointed members. Following the last general election held in August 2020, 29 NL seats, in terms of the countrywide votes received by political parties have been allocated to seven with the SLPP being the largest beneficiary. The SLPP obtained 17 NL slots whereas the SJB followed with 7. Five other political parties shared the remaining six seats. 

Petitioner Kodituwakku has argued that the direct violation of Article 82 (5) made 99A introduced through fraudulent means nonexistent. According to the petition Article 99A had been produced by the Parliamentary Select Committee on Franchise and Election appointed by the Speaker on July 08, 1983. The said Article had been submitted to the Parliament on March 08, 1988 after 5 years of deliberations. The Article 99A introduced by the said 14th Amendment Bill was a verbatim of the Article 99A approved by the said Select Committee in which there was no provision at all for nominations of any person outside the names published under Article 99A for the information of the voters, which had been confirmed by the Chairman of the Select Committee, Ranasinghe Premadasa, the, then Prime Minister, who presented the14th Amendment Bill to the Parliament on May 03,1988. 

The petitioner sought the appointment of a Special Bench in terms of Article 132 (3) (iii) to hear and determine the application on the basis of it being of public and national importance. The petitioner also requested for the repealing of the 14th Amendment.