SC must clarify exemption of Article 66(g) under Article 99(13)(b) – Narrow mindedness of the EC questioned
The game of musical chairs does entail its players having to face the music at some point. When the music is killed off, and silence careens, one player will inevitably find oneself in the unenviable position of standing pretty, merely occupying vacant space; the void beckons. In politics, this is akin to a no man’s land where if not fear, at least uncertainty prevails to a certain degree as to one’s fate, in this instance as one of the elected people’s representatives.
The legal regime as applicable to nominees, candidates and members
Section 14 of the Parliamentary Elections Act, No. 01 of 1981, states that anyone qualified as per Article 90 of the Constitution may be nominated as a candidate for an election. Article 90 reads thus, “Every person who is qualified to be an elector shall be qualified to be elected as a Member of Parliament unless he is disqualified under the provisions of Article 91.”
Article 91 of the Constitution specifies disqualifications for being elected as a Parliamentarian.
As per the substitution of Section 20 of the 19th Amendment to the Constitution, Article 91(1)(d)(xiii) of the Constitution holds that a Sri Lankan citizen possessing dual citizenship (citizenship in another country aside to and apart from Sri Lanka) cannot be elected as a MP or allowed to sit and vote in Parliament. Dual citizenship can be obtained under the provisions of the Citizenship (Amendment) Act, No. 45 of 1987.
Any person not qualified to be elected as a MP, consenting to being nominated as a candidate, is, as per Section 18(a) of the Parliamentary Elections Act, committing an offence. Section 18(a) reads, “by reason of his conviction for a corrupt or illegal practice or by reason of the report of an Election Judge under the Ceylon (Parliamentary Elections) Order in Council, 1946, or under this Act (emphasis by the authors), or by reason of the report of the Supreme Court under the Presidential Elections Act, 1981 ;”. If convicted by a magistrate, the guilty are liable to a maximum fine of Rs 1,000 or to a maximum prison term of three months or both the fine and the term of imprisonment.
According to Section 92(2)(d) of the Parliamentary Elections Act, the election of a candidate of any electoral district could be declared void on an election petition if it could be proved to the satisfaction of the Election Judge that the candidate at the time of his/her election was disqualified for election as such. Furthermore, the said Subsection states that the matter is to be determined by an Election Judge. There is however no Election Judge in the country. Thus, the matter is to be tried before the Court of Appeal (jurisdiction stipulated in Section 93 of the Parliamentary Elections Act and Articles 140 and 144 of the Constitution).
Article 66(g) of the Constitution holds that a Parliamentary seat becomes vacant if the election of a MP is declared void by the law in place.