Elections Commissioner post challenged

[TamilNet, Thursday, 09 December 1999, 19:39 GMT]
The appointment of an acting Commissioner of Elections by the President has been challenged before the Supreme Court on grounds that it doesn't comply with the Provisions of the Presidential Elections Act, said Attorney at law Manohara De Silva.

Manohara De Silva, pleading in support of the application challenging the appointment of the Acting Commissioner of Election, continued that there was no merit in the argument that the constitution is the supreme law.

The Constitution provides for the President to appoint the Commissioner of Elections. Under the Presidential Elections Act, it is the Commissioner of Elections who is empowered to appoint an acting Elections Commissioner.

The following is an excerpt of the exchange between the court and de Silva's counsel:

Court : Does the constitution stipulate that the President cannot make the appointment.

Court :Counsel: No

Court: Does the Act stipulate that she cannot exercise her discretion?.

Counsel: The court has to view the context when there is a conflict between the constitution and the Act.

Court: How can we read into the constitution what is not there?

Counsel: When there is a conflict, it has to be resolved only by rules of Interpretation.

Court: Later law will supersede.

Counsel: Act is the later law, while the constitution is anterior. Therefore this rule is in favour of the application.

Court: Would you agree that if we hold with you there can be disastrous consequences?

Counsel: We have not filed the application to create disaster. Court has to consider the legal position, not the consequences.

Although the President has discretionary powers, it is not absolute discretion. "Today she has appointed a person not serving in the Elections department. Next time, it can be a total outsider. The discretion has to be exercised in the spirit of the constitution, the spirit of democracy and fair play," de Silva's counsel said.

He concluded that the petitioners only seek a declaration that the appointment was illegal in order to ensure that there is no abuse of discretionary powers in the future.

The inquiry proceeds today.

Ravaya Newspaper Deputy Editor Newton Seneviratne and Air Vice Marshal Harry Gunatileke are the petitioners.

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