By Shamindra Ferdinando

Public interest litigation activist Nagananda Kodituwakku has requested the Supreme Court to declare 14th Amendment to the Constitution void ab initio and has no force in law. This move has come while a high profile project is underway to introduce a new Constitution,

A nine-member group led by eminent President’s Counsel Romesh de Silva is engaged in formulating a new draft Constitution.

The Supreme Court has been moved in terms of Articles 82 (6), 125 and 126 of the Constitution against the 14th Amendment enacted during J. R. Jayewardene’s tenure as the President. The 14th Amendment dealt with the National List introduced by President Jayewardene ahead of the 1989 parliamentary election.

Attorney-at-law Kodituwakku has initiated action in his capacity as the General Secretary of the Vinivida Peramuna, an unregistered political party.

The petitioner also challenged the appointment of Ven. Athureliye Rathana Thera and UNP leader Ranil Wickremesinghe on the National Lists of Ape Jana Bala Pakshaya and the UNP, respectively.

Kodituwakku has requested the appointment of a Special Bench in terms of Article 132 (3) (iii) to hear his application which the civil society activist described as a matter of public and national importance.

When The Island pointed out that the petitioner hadn’t been successful in a previous case filed in the Supreme Court against National List appointments made following the 2015 general election, Kodituwakku emphasised the court was moved (SC/Writs/05/2015) in terms of the Article126 of the Constitution. The SC declined to issue notice on the respondents on the basis that relief sought in the petition couldn’t be granted in a Writ Application, Kodituwakku said. However, taking into consideration the SC denial and the subsequent developments, the latest application had been made in terms of Articles 82 (6) 125 & 126 of the Constitution, the lawyer said.

Among the 12 respondents are former Chairman of the Election Commission Mahinda Deshapriya now Chairman of the Delimitation Committee , Deshapriya’s successor lawyer Nimal Punchihewa, the then General Secretary of the UNP Akila Viraj Kariyawasam and Ven. Wedinigama Wimalatissa , General Secretary , Ape Jana Bala Pakshaya.

Kodituwakku in his petition has pointed out that both Ven. Rathana and Wickremesinghe received appointments through the National List after being rejected by the people of Gampaha and Colombo districts, respectively. The UNP and Ape Jana Bala Pakshaya are represented by an MP each through the National List. Both parties failed to win seats. The Parliament consists of 196 elected and 29 appointed members.

The petitioner argued that the General Secretaries of the UNP and Ape Jana Bala Pakshaya had acted contrary to the supreme law of the land, the Constitution. The Constitution clearly specified that National List nominations should be presented to the Election Commission within one week after receiving notice by the Party Secretaries from the Election Commission, lawyer Kodituwakku said.

The petitioner said that even the 99 A (part of 14 A) that dealt with National List appointments had been fraudulently included by the then Speaker E. L. Senanayake.

According to the petition filed by lawyer Kodituwakku, Article 99A had been introduced through the 14th Amendment to the Constitution which was debated and passed in the Parliament on 04th May 1988. The petitioner said 14th amendment had been the result of the Parliamentary Select Committee on Franchise and Election which was appointed by the Speaker on 08th July 1983. The final product of the report of the said Select Committee had been submitted to the Parliament on 08th March 1988 after 5 years of deliberations. And the petitioner stated that Article 99A introduced by the said 14th Amendment Bill was a verbatim of the Article 99A approved by the Select Committee in which there was no provision at all for nominations of any person outside the names published under Article 99A which had been confirmed by the Chairman of the Select Committee, Ranasinghe Premadasa, the, then Prime Minister, who presented the 14th Amendment Bill to the parliament on 03rd May 1988 with the following statement made in the house.

“… Orders have been issued to the Government Printer to print it as a Sessional Paper No 109 of 1988. This Report will include a verbatim record of the proceedings of the Committee. The names of the party nominees are known beforehand. In fact, their names are published in the Gazette immediately after the closing of nominations. Therefore, the voters are aware of the identity of the candidates of the different Parties who are to be elected as National List Members …”

Lawyer Kodituwakku said that it would be pertinent to mention what exactly Ranasinghe Premadasa presented to parliament.

“… Where a recognized political party or independent group is entitled to any seat under such apportionment, the Commissioner of Elections shall require the secretary of such recognized political party or group leader of such independent group to nominate persons qualified to be elected as Members of Parliament, to fill such seats and shall declare elected as Members of Parliament, the persons so nominated…”

The Petitioner stated that the aforementioned objective has been completely done away with the clause fraudulently inserted to the Article 99A of the Constitution, which is reproduced below with the relevant section interpolated, shown within bracket. This added clause permitted the Secretaries of the Political Parties to nominate even the defeated candidates at the General Election, through the National List.

“… Where a recognized political party or independent group is entitled to a seat under the apportionment referred to above, the Commissioner of Elections shall by a notice, require the secretary of such recognized political party or group leader of such independent group to nominate within one week of such notice, persons qualified to be elected as Members of Parliament (being persons whose names are included in the list submitted to the Commissioner of Elections under this Article or in any nomination paper submitted in respect of any electoral district by such party or group at that election) to fill such seats and shall declare elected as Members of Parliament, the persons so nominated…”

Lawyer Kodituwakku alleged at the Committee Stage (1988) there had been no amendment made to the composition of 29 National List MPs proposed by Article 99A of the Constitution and it was duly passed by the Parliament on 04th May 1988. And yet the Bill so duly passed by the Parliament hadn’t been certified by the Speaker E. L Senanayake and on 24th May 1988 instead, Senanayake had certified a Bill, which contained completely different Article 99A which was not adopted by the Parliament on 04th May 1988.