Thirteen intervention petitions had been filed in connection with this reference application. Most notable among the submissions was that both the official and non-official Bar, including the Attorney General, negatively answered to the three questions posed by President Maithripala Sirisena. President Maithripala Sirisena, in terms of Article 129 (1) of the Constitution, had referred to the Supreme Court the following questions for its consideration:
(a) In view of the Review Committee failing to submit its report to me in accordance with sub sections (13) and (14) of Section 3A of the Provincial Councils Elections Act No. 2 of 1988 as amended by Act No. 17 of 2017, whether, I, as President, can by proclamation forthwith publish the new number of electorates, the boundaries and names assigned to each electorate so created in terms of the report of the Delimitation Committee submitted to the Minister assigned the subject of Provincial Councils?
(b)Whether, the Provincial Councils Elections can be held under the Provincial Councils Elections Act No. 2 of 1988 as amended by Act No. 17 of 2017, once the Proclamation referred in (a) above is published?
(c) Whether in the absence of such inability to hold such Provincial Council elections in terms of the present law, the said provincial council elections can be held under the law that was in force prior to the enactment of the Provincial Councils Elections (Amendment) Act No. 17 of 2017 in view of section 6(2) of the Interpretation Ordinance?
Additional Solicitor General (ASG) Indika Demuni de Silva appearing for the Attorney General (AG) informed Supreme Court that the AG would negatively answer to the questions raised by President.
ASG de Silva informed Court that enactment of the Provincial Councils Elections (Amendment) Act No. 17 of 2017 comes into operation from the date certified by the Speaker. Therefore, Provincial Councils Elections cannot be held under the previous law, the ASG argued. She further stated that holding of Provincial Council election can be done through an amendment or repeal brought before Parliament.
President’s Counsel Sanjeewa Jayawardena appearing for Ven. Elle Gunawansa Thero informed Court that reference forwarded by the President was a request to bypass the Parliament process. He argued that about 139 Parliamentarians unanimously had voted against the delimitation committee report in Parliament.
President’s Counsel Ali Sabry, appearing for Prof. Sunanda Madduma Bandara, informed Court that the President has no power to bypass the law. He contended that President has no powers to intervene in the Provincial Council election process, until the necessary legislative process is operated.
Counsel Suren Fernando appearing for UNP General Secretary Akila Viraj Kariyawasam told court that elections must be held according to the prevailing laws of the country. He moved Supreme Court to negatively answer to the questions raised by President.
However, President’s Counsel Wijedasa Rajapaksa appearing for intervenient petitioner Dasun Nagashena informed that sovereign power of the people cannot be deprived due to the failure of the legislature and thereby he observed that the President can seek an opinion from Supreme Court to get to know whether PC elections can be held in accordance with the previous law.
TNA Parliamentarian M.A. Sumanthiran informed Supreme Court that Provincial Council elections could be held without any further delay by amending the Provincial Council Elections Act.
The Chief Justice had nominated a fuller Bench comprising five judges of Supreme Court to hear a reference application forwarded by President Maithripala Sirisena on Provincial Council elections. In his reference application, the President sought a determination from the Supreme Court whether the Provincial Council Elections can be held under the law that was in force prior to the enactment of the Provincial Councils Elections (Amendment) Act No. 17 of 2017.
The five-judge-bench comprised Chief Justice Jayantha Jayasuriya, and Justices Buwaneka Aluwihare, Sisira de Abrew, Prasanna Jayawardena and Vijith Malalgoda.Sanjeewa Jayawardena PC, Ali Sabry PC, M.A. Sumanthiran PC, Wijeyadasa Rajapakshe, Senior Counsel Kanishka Vitharana, Senior Counsel Viran Corea and Counsel Suren Fernando appeared for the intervenient petitioners.
Additional Solicitor General (ASG) Indika Demuni de Silva with Deputy Solicitor General Nerin Pulle appeared for the Attorney General.
