{"id":56265,"date":"2017-11-10T02:22:11","date_gmt":"2017-11-10T07:22:11","guid":{"rendered":"http:\/\/dbsjeyaraj.com\/dbsj\/?p=56265"},"modified":"2017-11-10T03:34:25","modified_gmt":"2017-11-10T08:34:25","slug":"geetha-kumarasinghe-gotabhaya-rajapaksa-and-the-upfa-galle-district-mps","status":"publish","type":"post","link":"https:\/\/dbsjeyaraj.com\/dbsj\/?p=56265","title":{"rendered":"Geetha Kumarasinghe, Gotabhaya Rajapaksa and the UPFA Galle District MP’s"},"content":{"rendered":"

By
\nD.B.S.Jeyaraj<\/strong><\/p>\n

Popular Sinhala movie actress Geetha Kumarasinghe who was elected member of Parliament from Galle electoral district on the United Peoples Freedom Alliance(UPFA) ticket in August 2015 has been unseated as an MP by rulings of the Sri Lankan judiciary.<\/p>\n

\"\"<\/p>\n

According to relevant media reports a five judge bench of the Sri Lankan Supreme court had on November 2nd 2017 ruled unanimously that Galle district Parliamentarian Geetha Kumarasinghe was not qualified to be elected as a Member of Parliament since she was holding dual citizenship at the time of her election. The country\u2019s apex court upheld a writ of Quo warranto issued by the Court of Appeal that Galle District UPFA MP Geetha Kumarasinghe was not entitled to hold office as a Member of Parliament since she had contested the August 2015 election while holding dual citizenship.
\n
\nThe Court of Appeal on March 3rd 2017 had held that in terms of Article 91(1) (d) (xiii) of the Constitution, Geetha Kumarasinghe was not qualified to be elected as a Member of Parliament since she holds dual citizenship in Switzerland and Sri Lanka. Subsequently, MP Geetha Kumarasinghe filed an Appeal in the Supreme Court challenging the Court of Appeal judgment.On May 15 2017 , a divided three-judge-Supreme Court bench had granted special leave to appeal with the petition filed by Ms. Kumarasinghe.<\/p>\n

Five Judge Bench Of The Supreme Court<\/strong><\/p>\n

Chief Justice Priyasath Dep appointed a five judge bench of the Supreme court to hear the appeal. The unanimous judgment of the divisional bench of five judges, comprising Chief Justice Priyasath Dep and Justices B.P. Aluvihara, Sisira J. De Abrew, Anil Gooneratne and Nalin Perera, was read in open court by Justice De Abrew. “When I consider the Article 91(1) (d) (xiii) of the Constitution, I hold that if a candidate in a Parliament Election is a citizen of Sri Lanka and any other country on the day of Parliament election or on the day of taking oaths as a Member of Parliament (MP), he\/she cannot be considered as an MP and that office of such a person as an MP is a nullity,\u201d Justice Abrew observed.\u201cAfter taking oaths as a MP, if he\/she becomes a citizen of any other country or continues to be a citizen of any other country, he\/she too cannot be considered as an MP and that office of such a person as a Member of Parliament is nullity\u201d Justice Abrew added<\/p>\n

The Supreme Court Judgment said Ms. Kumarasinghe was disqualified to be elected as a Member of Parliament from 17 August 2015 – the day of the election – and on 1 September 2017 when she took oaths as a Parliamentarian.Dismissing Kumarasinghe\u2019s appeal, the Supreme Court bench ruled that the Court of Appeal was correct in its 3 May 2017 ruling to issue a writ of quo warranto declaring that the Galle District MP was disqualified from being a Member of ParliamentThe Court also directed the Registrar to send the judgment to the Secretary General of Parliament immediately.<\/p>\n

Kumara Vidugalage Dona Geetha Samanmalee Kumarasingha popularly known as Geetha Kumarasinghe was elected to parliament for the first time in Aug 2015 polling 63,955 votes. Six MP\u2019s were elected on the UPFA ticket from Galle in the poll. Geetha was the fifth of the six UPFA Galle MPs. Next to Geetha as sixth MP was Mohan Priyadarshana de Silva polling 53, 071 preferences. Former Indigenous medicine and Vocational training minister Piyasena Gamage who polled 47, 247 votes and came seventh failed to get elected. The top four garnering preference votes in the 2015 August UPFA Galle list of MP’s were – Chandima Weerakkodi (114,851), Ramesh Pathirana(105,434), Nishantha Muthuhettigama (75,994) and Manusha Nanayakkara (73,387). Geetha’s disqualification will enable ex-minister Piyasena Gamage the next in line in terms of preferences to become an MP again.<\/p>\n

Appeal Court Quo Warranto Writ<\/strong><\/p>\n

The Quo Warranto writ issued by the Appeal court against Geetha Kumarasinghe is a direct consequence of the 19th Constitutional Amendment.Consequent to the 19th amendment to the Constitution of Sri Lanka, no person can be elected to Parliament if they held dual citizenship. The 19th Amendment enacted hastily after President Maithripala Sirisena was elected to office in January 2015 re- introduced the two term limit on the number of terms a person could hold office as President.According to Clause 4 of the 19th Amendment and Article 31(2) of the Constitution, a person who has been twice elected as President is disqualified from contesting third time.<\/p>\n

Likewise the 19th Constitutional amendment also debarred persons holding office from becoming an MP or President of Sri Lanka. As per Art 92 (b) and Clause 20 (4) of the 19th Amendment, and Article 91(1)(d)(xiii) of the Constitution, persons who are dual citizens are disqualified from being elected as Members of Parliament or the President of the Republic. The Constitution stipulates – \u201cNo person shall be qualified to be elected as a Member of Parliament or to sit and vote in Parliament if;(d) (xiii) \u201ca citizen of Sri Lanka who is also a citizen of any other country;\u201d <\/p>\n

An interesting question that arose at the time of the 2015 August election was how Geetha Kumarasinghe was allowed to contest polls and\/or why she was not debarred or disqualified then. It was common knowledge in 2015 that Geetha, having married a Swiss national, was a citizen of both Sri Lanka and Switzerland. Geetha who got married to Chris Fuhrer Ferdinand many years ago has a daughter, Tharika Fiona by that marriage.<\/p>\n

When opponents raised the issue of dual citizenship at that time, Geetha herself said she had renounced her Swiss citizenship by writing to the Swiss Embassy. It was however hazy as to whether a citizen could renounce Swiss citizenship by merely writing a letter. On the other hand it was also doubtful as to whether the election contesting taboo imposed on dual citizens by way of the 19th Constitutional amendment had legal effect or not.<\/p>\n

The 19th Amendment to the Constitution expressly prohibited a \u201cCitizen of Sri Lanka who is also a citizen of any other country\u201d from contesting the elections. The 19th Constitutional Amendment came into effect on 15 May 2015. Nominations for the Parliamentary elections closed on 13 July 2015 . As such it was theoretically possible for Elections Department officials to have rejected nomination papers with a candidate or candidates rendered ineligible on account of holding dual citizenship. However when the UPFA Galle District list was challenged by interested parties during the time of nomination, the Returning Officer said that he could not reject the UPFA list due to one of the candidates, Geetha Kumarasinghe, being a dual citizen. <\/p>\n

Later on the \u201cSunday Times\u201d posed a specific question about the exact position to the then Additional Elections Commissioner M.M. Mohamed, who also dealt with legal matters, He reportedly answered: \u201cThere is no provision (in the law) where we could have rejected a nomination on the grounds that a candidate was holding dual citizenship. <\/p>\n

We also have no powers to investigate whether a candidate had dual citizenship. Even after the elections there is no provision to refrain from gazetting the names of those who were elected. However, the matter could be brought up in court and it will give a ruling. Or the Secretary General of Parliament can decide whether such a person could sit or not.\u201d <\/p>\n

SLFP Organizer For Bentara-Elpitiya<\/strong><\/p>\n

This being the practical situation after the 19th Constitutional Amendment there was no hitch when Geetha Kumarasinghe was nominated as a UPFA candidate or when she actively campaigned in Galle district. Geetha was the Sri Lanka Freedom Party (SLFP) organiser for the Bentara-Elpitiya Electoral division. She won the electorate for the UPFA with 34,275 (52.7%) as opposed to the United National Party (UNP) getting 26, 559 (40.83%). <\/p>\n

In terms of overall preference votes for Galle District it was Chandima Weerakkody who topped the UPFA list with 114,851 votes. Geetha Kumarasinghe came fifth with 63,955 preferences. She was elected. Geetha\u2019s name was duly gazetted as Galle District MP and she took her oaths on September 1st when the new Parliament convened. Her name was also included in the Sri Lanka Parliament directory of MPs. It appeared that she had become an MP despite the legality of her election being under scrutiny. <\/p>\n

The post – 19th Amendment constitutional position regarding dual citizens right to contest elections was firmly established by the Court of Appeal on May 3 2017 , when it unseated Galle district MP, Geetha Kumarasinghe, for failing to negate her dual citizen status by renouncing her Swiss nationality before she contested for parliament in August 2015. Court held that under the 19th Amendment to the Constitution, a dual citizen is not eligible to contest for Parliamentary membership and therefore Ms. Kumarasinghe could no longer function as a Parliamentarian. This ruling is now upheld by the unanimous Supreme court decision of November 2nd 2017.<\/p>\n

Geetha Samanmalee Kumarasinghe was born on 5 July 1955 in Badulla. Her father Wijaya Kumarasinghe was from Hamburugala in Bentara. Her mother Udulawathi Siriwardena was from Kotmale. Though Geetha, the eldest, was born in Badulla, she and her seven younger siblings grew up in southern Bentara. Her father Wijaya was a journalist who worked as the Deputy Editor of the journal Sinhala Bauddaya (Sinhala Buddhist).<\/p>\n

Sinhala Version Of Brigitte Bardot<\/strong><\/p>\n

Geetha\u2019s tryst with glamorous fame came in the form of a beauty competition. The Davasa newspaper organised a beauty competition at Bentota in 1973. Over 100 dainty damsels participated but Geetha was crowned as the fairest of them all. One of the judges Ronald Fernando felt that Geetha should act in films. He was a friend of matinee idol Gamini Fonseka. He told Gamini about the Bentota beauty queen and suggested that she be given a chance to act in films. <\/p>\n

Gamini agreed to meet Geetha. Fonseka too was impressed by Geetha and arranged for a screen test at cinemas studio. Word got around in movie circles that a Sinhala version of Brigitte Bardot had been discovered at a beauty pageant in Bentota. Filmmakers flocked southwards to the Kumarasinghe household in Bentara. Even without a single film of hers being released Geetha had offers for 21 films.<\/p>\n

Her first film contract was signed for K.A.W. Perera\u2019s \u2018Wasana\u2019. Though Wasana was Geetha\u2019s first film, it was not fated to be her screen debut. Geetha Kumarasinghe\u2019s first film to be released in theatres was Neil Rupasinghe\u2019s \u2018Lassana Kella\u2019. It was released on 20 June 1975. A few months later came \u2018Damayanthi\u2019. March 1976 saw \u2018Wasana\u2019 hitting the screen. Then followed Manik Sandrasagara\u2019s \u2018Kolomba Sanniya\u2019. A star was born!<\/p>\n

Geetha took the Sinhala film world by storm. A remarkable facet of Geetha\u2019s vivacious personality was her readiness to interact closely with her male co-stars on screen. She was not prepared to play the coy maiden if and when a scene warranted close encounters of the physical kind. This was indeed a refreshing boon to directors. Film fans of all ethnicities invaded cinemas in large numbers to see this bombshell of scintillating beauty acting in sensual scenes. Movies featuring Geetha Kumarasinghe seldom bombed at the box office.<\/p>\n

Geetha however could never be stereotyped as a bimbo playing eye-candy roles alone. She began acting in weighty roles that demonstrated her acting abilities from the beginning of her film career and continued to do so over the years. Films such as \u2018Pembara Madhu,\u2019 \u2018Podi malli,\u2019 \u2018Siribo Ayya,\u2019 \u2018Sathara Diganthaya,\u2019 \u2018Karumakkarayo,\u2019 \u2018Mahagedara,\u2019 \u2018Anuragaye Ananthaya,\u2019 \u2018Palama Yata,\u2019 \u2018Rajya Sevaya Pinisai,\u2019 \u2018Loku Duwa\u2019 and \u2018Ran Diya Dahara\u2019 testify to her acting prowess. Who can forget the characters Dulcie in \u2018Pembara Madhu,\u2019 Dotty in \u2018Palama Yata,\u2019 Punna in \u2018Lokuduwa\u2019 and Amali in \u2018Ran Diya Dahara\u2019?<\/p>\n

Roles Of Oppressed Women Fighting Against Odds<\/strong><\/p>\n

Acting in roles of oppressed women fighting against the overwhelming odds of life is a Geetha Kumarasinghe hallmark. She has won the National Award for Best Supporting Actress twice and National Award for Best Actress thrice. Geetha also obtained the prestigious Sarasaviya award for Best Actress four times and the Most Popular Actress award once. Geetha also got the Swarna Sanka award for Best Actress twice.In a film career spanning more than three decades Geetha has acted in over 80 films. Most of them are Sinhala movies. Yet she has also acted in non-Sinhala movies made by Indian, Pakistani, Japanese and French filmmakers.<\/p>\n

Geetha Kumarasinghe also blossomed into a producer of popular films of great quality. Some of the films produced by her were \u2018Palama Yata,\u2019 \u2018Salambak Handai,\u2019 \u2018Loku Duwa,\u2019 \u2018Anuragaye Ananthaya,\u2019 \u2018Wasuli\u2019 and \u2018Geetha\u2019. She won two Best Film awards at the Sarasaviya festival in her capacity as producer for \u2018Palama Yata\u2019 and \u2018Loku Duwa\u2019. In later years Geetha also became a successful business entrepreneur, running several garment factories.<\/p>\n

Though Geetha Kumarasinghe hailed from a middle class politically conscious family, she never engaged in active politics preferring to concentrate on her film career. Her entry to politics was due to Mahinda Rajapaksa who enlisted her services on his behalf in the 2010 presidential election campaign. Canvassing for Mahinda at the polls was an exhilarating experience for the popular actress. Thereafter she was appointed UPFA Organiser for Bentara-Elpitiya electoral division in Galle District. Geetha contested the 2010 elections on the UPFA ticket from Galle. She lost. In 2014 she contested the Southern Provincial Council poll and was elected as Councillor. In 2015 she entered Parliament as an MP fiercely loyal to Mahinda Rajapaksa. Despite overtures she did not join the Maithripala Sirisena camp.<\/p>\n

Prior to the 19th Constitutional Amendment being enacted it was possible for people with dual citizenship to contest elections in Sri Lanka. When the Sirisena-Wickremesinghe Govt. replaced the Rajapaksa regime in January 2015 , many of the bottlenecks surrounding the obtaining of dual citizenship by Sri Lankan expatriates were removed. Despite these \u201cdual citizenship friendly\u201d actions, the new regime introduced a problematic provision in the 19th Constitutional Amendment debarring dual citizens from contesting elections in Sri Lanka. It was widely believed then that the provision was a pre-emptive move to prevent ex-President Rajapaksa\u2019s sibling Gotabhaya Rajapaksa from seeking electoral office. <\/p>\n

Former Defence Secretary Gotabhaya Rajapaksa<\/strong><\/p>\n

Former Defence and Urban development secretary Gotabhaya Rajapaksa is a controversial personality who is loved by some and hated by others. There is a school of thought in Sri Lanka which is optimistic that Gotabhaya Rajapaksa is destined to rule the country in the future just as his elder brother did. The 19th amendment has reversed the 18th amendment and blocked Mahinda Rajapaksa from contesting for the presidency again. If the envisaged new constitution materialises and the executive presidency is abolished and the Prime ministerial office is empowered then Mahinda Rajapaksa can or may seek Prime ministerial office.<\/p>\n

If however the diluted executive presidency continues to remain then an alternative to Mahinda has to be found. Many think the alternative is Gotabhaya. In recent times the Gotabhaya fan club has been working overtime promoting the retired Army Colonel as the prospective presidential candidate. This \u201cpush\u201d may have suffered a temporary setback due to the ruling on Geetha Kumarasinghe’s election.<\/p>\n

As of now Gotabhaya Rajapaksa is a dual citizen holding US citizenship. His only son is well-settled in the US. If Gota is to contest the presidential or parliamentary poll in the future he would have to give up his US citizenship. In spite of critically denouncing the US at times, Gotabhaya has not shown any inclination to renounce his US citizenship. Some months ago when Gota addressed the Foreign Correspondents Association in Colombo the ex-Defence secretary was non – committal about renouncing US citizenship and entering active politics. Mahinda too has not been too enthusiastic about Gota contesting polls. <\/p>\n

In any case the Appeal court ruling upheld by the Supreme court on Geetha Kumarasinghe has demonstrated that if Gotabhaya Rajapaksa wants to be elected to high office then he has to clearly and unequivocally renounce US citizenship. Those in the Sirisena – Wickremesinghe – Kumaratunga camp opine that Gota would never give up his US citizenship. Hence the provision in the 19th amendment was an anticipatory stratagem aimed at keeping Gota out of Parliament and the President\u2019s House. It was based on the premise that Gotabhaya would never opt to lose his dual citizenship status. It remains to be seen whether this calculation is correct or not. <\/p>\n

Fate Of UPFA Candidate List For Galle District<\/strong><\/p>\n

Another issue that arises out of Geetha Kumarasinghe’s disqualification is the fate of the other candidates from the UPFA elected to Parliament. When the court of appeal ruled earlier that she was disqualified there was much speculation that the entire UPFA list of candidates for Galle district was also disqualified. There were many media reports to that effect. Several politicians from Galle district also announced to the media that they would mount legal challenges against the validity of MP’s elected on the UPFA list. If the election was indeed null and void on account of Geetha Kumarasinghe’s ineligibility to be a MP then all six elected from the UPFA could forfeit their seats was the calculation. Ms. Kumarasinghe’s appeal to the Supreme court against the Appeal court ruling brought about a temporary lull to those speculative calculations or calculative speculations.<\/p>\n

Now that the Supreme court has upheld the Appeal court ruling that unseated Geetha Kumarasinghe the question of whether the entire list of UPFA candidates for Galle district is disqualified will once again emerge. Some politicians or public interest litigants may even test this out by resorting to legal action. How and what the courts would determine on the issue if and when raised before appropriate tribunals is a matter of conjecture. There is however some expert opinion available on the question which may shed some light on the judicial implications of the issue.<\/p>\n

Lawyer\/Researcher Gehan Gunatilleke<\/strong><\/p>\n

Attorney -At- Law Gehan Gunatilleke is a Research Director at Verit\u00e9 Research. He compiled a brief note after the appeal court ruling on Geetha Kumarasinghe’s election. The brief was prepared with the advice and support of Dr. Nishan de Mel, Viran Corea, Sabrina Esufally, Shamara Wettimuny and Rehana Mohammed. This brief is of great relevance in the context of the Supeme court upholding the earlier Appeal court quo Warranto writ. I am therefore taking the liberty of quoting extensively from that note with due acknowlegement in a bid to keep the readers informed of the position.<\/p>\n

The briefing note by Gehan Gunatilleke is presented in three sections. The first section explains the legal recourse available in the event that a disqualified person is elected to parliament. The second explains the provisions of the PEA with respect to the grounds on which a nomination paper can be rejected. The third section explains why the disqualification of a candidate cannot result in the invalidation of the nomination paper in which he or she was nominated. It must be noted that this paper was prepared in the aftermath of the Appeal court ruling. It is however perfectly valid in the context of the current Supreme court judgement too.<\/p>\n

1st Section – Disqualification of Candidates<\/strong><\/p>\n

“Article 91 of the Constitution sets out the grounds on which a person may be disqualified from being elected to parliament. For example, article 91(d) (xiii) provides that a \u2018citizen of Sri Lanka who is also a citizen of any other country\u2019 is disqualified from being elected to parliament.<\/p>\n

This particular disqualification was introduced through the 19th Amendment to the Constitution. Meanwhile, section 14 of the Parliamentary Elections Act(PEA( reiterates these grounds by referring to the provisions of the Constitution.<\/p>\n

Section 92(2)(d) of the PEA provides for a remedy where a candidate who is disqualified from being elected to parliament is in fact elected. It states that an election petition may be filed against a candidate where he or she is disqualified at the time of election. Section 93 provides that such a petition may be filed against a candidate in the Court of Appeal in terms of article 144 of the Constitution.<\/p>\n

The Court may then invalidate the election of the candidate. Section 95 stipulates that only the following persons may file such a petition: (a) a person claiming to have had a right to be returned or elected at such election; or (b) a person alleging himself to have been a candidate at such election. Meanwhile, section 108 of the PEA stipulates the time period within which an election petition should be filed.<\/p>\n

Under ordinary circumstances, an election petition must be presented within \u2018twenty-one days of the date of publication of the result of the election in the Gazette\u2019. Apart from election petitions, any citizen could potentially file a writ application challenging the election of a disqualified candidate.<\/p>\n

The Court of Appeal in the Kumarasinghe case held that such a right exists under article 140 of the Constitution. It also held that Kumarasinghe was disqualified from being elected to parliament due to her dual citizenship, which is a disqualification under article 91(1)(d)(xiii) of the Constitution.<\/p>\n

The judgement, however, does not deal with the validity of the nomination paper of the United People\u2019s Freedom Alliance (UPFA) for the Galle district \u2013 the nomination paper that included Kumarasinghe as a candidate. In fact, the petitioners did not challenge the RO\u2019s decision to accept the nomination paper, nor did they name any officer of the Election Commission as a respondent in the case”<\/p>\n

2nd Section – Grounds for Rejecting Nomination Papers<\/strong><\/p>\n

“Section 19(1) of the PEA lists five grounds upon which an RO can reject a nomination paper:<\/p>\n

(a) Where the nomination paper has not been delivered to the RO during normal office hours within the nomination period by the secretary of the party, or by the candidate whose name appears first in the nomination paper, or by the candidate whose name appears second in the nomination paper;<\/p>\n

(b) Where the nomination paper does not contain the minimum number of candidates required to be nominated in terms of article 99(3) of the Sri Lankan Constitution;<\/p>\n

(c) Where the deposit required under section 16 of the PEA has not been made;<\/p>\n

(d) Where the consent of one or more candidates nominated, or the oath or affirmation in the form set out in the Seventh Schedule to the Constitution, of one or more candidates, has not been endorsed on the nomination paper; or<\/p>\n

(e) Where the signature of the secretary in the case of a recognised political party, or of the group leader in the case of an independent group, does not appear on the nomination paper, or where such signature has not been attested by a Justice of the Peace or by a notary public.<\/p>\n

Section 19(1) of the PEA does not list a candidate\u2019s disqualification as one of the grounds for invalidating a nomination paper. The question then arises as to whether the list of grounds contained in section 19 is exhaustive.<\/p>\n

In interpreting section 19, the legal maxim expressio unius est exclusio alterius, meaning \u2018the inclusion of one thing is the exclusion of the other\u2019, becomes relevant. According to this maxim, it may be inferred that parliament, by including a list of specific grounds on which a nomination paper must be rejected, intended to exclude any other ground. An RO is therefore not authorised under the PEA to reject a nomination paper on the grounds that a particular candidate nominated in the nomination paper is disqualified”.<\/p>\n

3rd Section – The Validity of Nomination Papers<\/strong><\/p>\n

“Under the PEA, each nomination paper is required to contain endorsements by each nominated candidate certifying that he or she is \u2018not subject to any disqualification for election\u2019. Thus each candidate certifies his or her eligibility for election to parliament. It is noted that section 19(1A) provides:<\/p>\n

Objections to a nomination paper may be made to the returning officer between twelve noon and one-thirty o\u2019clock in the afternoon of the last day of the period of nomination, and no such objection shall be entertained by the returning officer after one thirty o\u2019clock in the afternoon of that day.<\/p>\n

The scope of these objections cannot include the disqualification of candidates, as the grounds for rejecting nomination papers under section 19(1) do not include the disqualification of candidates.<\/p>\n

Moreover, the existence of a disqualification of a candidate is a factual matter, and any claim that a candidate is disqualified would require a factual inquiry. The PEA does not authorise the RO to investigate the qualifications of any nominated candidate. The RO\u2019s role is merely to ensure that the nomination paper meets the requirements set out in section 19(1) of the PEA. Thus the RO can only entertain objections relating to non-compliance with section 19(1) of the PEA, which makes no reference to the qualifications of candidates. In any event, at a practical level, the Election Commission cannot be expected to conduct inquiries into each candidate\u2019s qualifications before accepting nomination papers. The sheer number of candidates nominated for parliamentary elections (6,151 for the 2015 parliamentary elections according to some reports) makes this task virtually impossible to carry out. For these reasons, it is appropriate that the onus be placed on each candidate to certify his or her eligibility.<\/p>\n

In the event that some disqualification is alleged, the appropriate remedy would be an election petition filed in terms of section 92 of the PEA, or potentially a writ application. The Court of Appeal can then conduct a proper factual inquiry to determine whether any disqualification existed at the time of election.<\/p>\n

Section 115 of the PEA removes any doubt as to whether the disqualification of a candidate invalidates a nomination paper.<\/p>\n

This section explicitly states that a disqualification of a candidate does not result in the invalidation of a nomination paper: 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 (emphasis added).<\/p>\n

The term \u2018written law\u2019 includes the Sri Lankan Constitution, and therefore, section 115 includes the disqualifications contained in article 91 of the Constitution. Accordingly, the disqualification of a candidate following a proper inquiry does not result in the invalidation of the entire nomination paper; only the grounds specifically included in section 19(1) of the PEA can result in such invalidation.<\/p>\n

It is also worth noting that (a) the rejection of nomination papers pre-election, and (b) the removal by disqualification of a specific candidate post-election take place at two different stages.<\/p>\n

These stages affect the franchise differently. On the one hand, the rejection of nomination papers takes place before the people are afforded an opportunity to elect a candidate.<\/p>\n

Hence it takes place before the people exercise their right to vote. On the other hand, once a candidate is elected, he or she ceases to be merely part of a list contained in a nomination paper; he or she is an elected representative of the people.<\/p>\n

Accordingly, to penalise persons (otherwise qualified) after they have been elected to parliament, on the sole basis of another candidate\u2019s disqualification, could negate the people\u2019s franchise rights and sovereignty.<\/p>\n

UPFA Nominations for Galle District Valid<\/strong><\/p>\n

This briefing note has discussed the law on (a) the grounds on which a candidate is disqualified to be elected to parliament, and (b) the grounds on which nomination papers can be rejected. It is clear that a nomination paper cannot be rejected on the basis that a nominated candidate is disqualified.<\/p>\n

Accordingly, the disqualification of Geetha Kumarasinghe \u2013 should it be upheld by the Supreme Court \u2013 cannot result in the invalidation of the UPFA nomination paper for the Galle district.<\/p>\n

The nomination paper remains valid as per the PEA, and accordingly all other candidates named in the nomination paper (provided they are qualified) retain their seats in parliament”.<\/p>\n

Much Water Flown Down The Bentara Ganga<\/strong><\/p>\n

This then is the legal position of the Galle district UPFA Parliaentarians consequent to the Appeal court ruling on Geetha Kumarasinghe’s election as summed up by Lawyer-researcher Gehan Gunatilleka. Much water has flown down the Bentara Ganga since then. The legality of the situation however remains the same as the Supreme court has upheld the Appeal court ruling. Even though Geetha Kumarasinghe is disqualified as an MP, her unseating is unlikely to affect the other MP’s elected from Galle district on the UPFA ticket.<\/p>\n

This article written for the “DBS Jeyaraj Column” appears in the “Daily Mirror” of November 4, 2017, it can be reached via this link:<\/p>\n

http:\/\/www.dailymirror.lk\/article\/Will-The-Unseating-Of-Geetha-Disqualify-the-UPFA-List-of-Galle-MPs–139799.html<\/a><\/p>\n

DBS Jeyaraj can be reached at dbsjeyaraj@yahoo.com<\/font> <\/a><\/strong><\/em> <\/p>\n

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By D.B.S.Jeyaraj Popular Sinhala movie actress Geetha Kumarasinghe who was elected member of Parliament from Galle electoral district on the United Peoples Freedom Alliance(UPFA) ticket in August 2015 has been unseated as an MP by rulings of the Sri Lankan judiciary. According to relevant media reports a five judge bench of the Sri Lankan Supreme …<\/p>\n

Continue reading ‘Geetha Kumarasinghe, Gotabhaya Rajapaksa and the UPFA Galle District MP’s’ »<\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":[],"categories":[27],"tags":[],"_links":{"self":[{"href":"https:\/\/dbsjeyaraj.com\/dbsj\/index.php?rest_route=\/wp\/v2\/posts\/56265"}],"collection":[{"href":"https:\/\/dbsjeyaraj.com\/dbsj\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/dbsjeyaraj.com\/dbsj\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/dbsjeyaraj.com\/dbsj\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/dbsjeyaraj.com\/dbsj\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=56265"}],"version-history":[{"count":9,"href":"https:\/\/dbsjeyaraj.com\/dbsj\/index.php?rest_route=\/wp\/v2\/posts\/56265\/revisions"}],"predecessor-version":[{"id":56283,"href":"https:\/\/dbsjeyaraj.com\/dbsj\/index.php?rest_route=\/wp\/v2\/posts\/56265\/revisions\/56283"}],"wp:attachment":[{"href":"https:\/\/dbsjeyaraj.com\/dbsj\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=56265"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/dbsjeyaraj.com\/dbsj\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=56265"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/dbsjeyaraj.com\/dbsj\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=56265"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}