Bill banning community reference in party name unconstitutional, say Tamil parties

[TamilNet, Friday, 14 August 2009, 17:43 GMT]
If the amendments to the election bill are passed as gazetted, "no political party which has a name signifying any religion or ethnic or other community will be entitled to be treated as a recognized political party," and the "concept of outlawing names of religions or other groups or communities from the name of political parties is inconsistent with the constitutional standards that may be gleaned from several articles of the Constitution," said Ilankai Thamil Arasu Kadchchi 9itaK) and All Ceylon Tamil Congress (ACTC) in a petition filed in Sri Lanka's Supreme Court on Wednesday, legal sources in Colombo said.

General Secretary of ITAK, Mavai Senathirajah, and General Secretary of ACTC, Gajendrakumar Ponnambalam are the petitioners and Sri Lanka's Attorney General is the respondent to the petition.

The Petitioners stated that when the Constitution has a separate chapter on Language Rights (Chapter IV) it obviously assumes the enforcement of such rights which may belong to different language based communities. In that context political parties that have, as their main objective, the welfare of a particular language community, ought to be permitted to function with a name that signifies that language based community.

Petitioners added that "another separate chapter has been set apart in the Constitution for the protection and fostering of the Buddha Sasana, while at the same time assuring to all religions the right s granted by articles 10 and 14 (1) (e)," and argued that this "portrays a fundamental feature of the Constitution to recognise political and other rights of religion based communities and religions...."

Full text of the petition follows:

IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA

In the matter of an application to determine whether the Bill titled: “Parliamentary Elections (Amendment) A Bill to amend the Parliamentary Elections Act No.1 of 1981” or any part thereof is inconsistent with the Constitution in terms of Article 121 read with Article 78 of the Constitution.

1.Mavai S Senathirajah
2.Gajendrakumar Ponnambalam

Petitioners
-vs.-

Hon. Attorney General
Attorney General’s Department
Colombo 12
Respondent
On this 12th day of August 2009

TO:HIS LORDSHIP THE CHIEF JUSTICE AND THEIR LORDSHIPS THE OTHER HONOURABLE JUDGES OF THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA.

The Petition of the Petitioner above named appearing by … his Attorney at Law states as follows:

1.The Petitioners are citizens of Sri Lanka and are entitled to make this application in terms of Article 121(1) of the Constitution of Sri Lanka.

2.The 1st Petitioner is the General Secretary of “Ilankai Thamil Arasu Katchi”, a recognised political party that was started in 1949, a year after independence, and which has been actively involved in the political affairs of this country ever since. “Ilankai Thamil Arasu Katchi” presently has 22 members of Parliament.

3.The 2nd Petitioner is the General Secretary of the “All Ceylon Tamil Congress”, a recognised political party, which was formed well before independence, and has been one of the leading political parties representing the interests of the Tamil community of this country.

4.The Hon. Attorney General is made a Respondent under and in terms of the requirements of Article 134(1) of the Constitution.

5.The Prime Minister by his order caused the publication of a Bill titled “Parliamentary Elections (Amendment) A Bill to amend the Parliamentary Elections Act No.1 of 1981” in the Supplement to Part II of the Gazette dated 17th July 2009, issued on 20.07.2009, which was placed on the Order Paper of Parliament on 6th August 2009.

A true copy of the said Parliamentary Elections (Amendment) is annexed herewith as X

6.The Petitioner seeks a determination from Your Lordships’ Court that clauses 2 and 4 of the aforesaid Bill are inconsistent with the provisions of Articles 3, 4, 9, 10, 12(1), 12(2), 14(1) (a), (b), (c), (e), (f), (g), the entirety of Chapter IV, Articles 27(4), (5), (6), (10), (11), and 41A(3) of the Constitution in the manner and for the reasons hereinafter setout.

7.Clause 2 of the bill seeks to amend Section 7 of the Parliamentary Elections Act No.1 of 1981 by repealing subsection 6 of Section 7 and replacing it with the following:

“A political party shall not be entitled to be treated as a recognized political party under paragraph (a) of subsection (5) if its name is identical with the name of any party which is already entitled to be treated as a recognize political party or in the opinion of the Commission so nearly resembles such name as to be calculated to mislead, confuse or deceive or signifies any religion or community.”(emphasis added).

8.Therefore if this Bill is passed no political party which has a name signifying any religion or ethnic or other community will be entitled to be treated as a recognized political party.

9.The Petitioners state that the whole concept of outlawing names of religions or other groups or communities from the name of political parties is inconsistent with the constitutional standards that may be gleaned from several articles of the Constitution.

10.The Petitioners state that when the Constitution has a separate chapter on Language Rights (Chapter IV) it obviously assumes the enforcement of such rights which may belong to different language based communities. In that context political parties that have, as their main objective, the welfare of a particular language community, ought to be permitted to function with a name that signifies that language based community.

11.Similarly the Petitioners state that another separate chapter (Chapter II) has been set apart in the Constitution for the protection and fostering of the Buddha Sasana, while at the same time assuring to all religions the right s granted by articles 10 and 14 (1) (e). This again portrays a fundamental feature of the Constitution to recognise political and other rights of religion based communities and religions.

12.The Petitioners state that the aforesaid clause 2 is inconsistent with article 10 of the Constitution as well.

13.The said clause 2 is also inconsistent with several provisions of article 14(1) of the Constitution, which together provide for the freedom to associate oneself with others in groups or communities based on religion, ethnic or any other such distinction.

14.The Petitioners state that the said clause 2 is also inconsistent with article 12 (1) and (2) in that for equality of all persons belonging to different religions or other communities is to be achieved, necessarily, political activity and advocacy on the part of different religions or other communities must be permitted.

15.Petitioners state that the said clause 2 is directly inconsistent with article 41A(3) of the Constitution, in as much as, members of Parliament who belong to certain distinct communities must be ascertainable for the implementation of this article of the Constitution which was enacted by a unanimous vote in parliament.

16.Clause 4 of the said Bill seeks to repeal and replace Section 9 of the Parliamentary Elections Act No.1 of 1981. Sub section 3 (i) of same is as follows:

“A political party which is entitled to be treated as a recognised political party for purpose of elections shall ceased to be so entitled – (i) if not one single candidate of such party is nominated for two consecutive parliamentary general elections;”

17.The Petitioners state that the aforesaid clause 4 of the proposed Bill in inconsistent with Article 12(1) of the Constitution in that it is arbitrary, without any rational basis and seeks to restrict the scope of a political party to a limited function of contesting parliamentary elections.

18.The Petitioners further state that any political party ought to be able to restrict itself to a local authority or provincial council election and need not always contest the general elections and thus the said clause is inconsistent with the constitutional scheme of the exercise of legislative power at three different levels.

19.The Petitioners state to Your Lordships’ court this clause in the Bill is either directly or indirectly inconsistent to the provisions of the Constitution as set out hereinafter and as such cannot be passed without the special majority set out in Article 83 and/or 84 of the Constitution.

20.In the aforesaid circumstances the Petitioners respectfully state that they are entitled to invoke the jurisdiction of Your Lordships’ Court for the reliefs prayed for herein.

21.The Petitioners have not previously invoked the jurisdiction of Your Lordships’ Court in respect of this matter.

22.A joint affidavit of the Petitioners is appended hereto in support of the averments contained herein.

WHEREFORE the Petitioner prays that Your Lordships’ Court be pleased to:

a)Declare the Bill titled “Parliamentary Elections (Amendment) A Bill to amend the Parliamentary Elections Act No.1 of 1981” and/or any one or more of its provisions as being inconsistent with the several Articles of the Constitution;

b)Communicate the declarations made under (a) to the Hon. Speaker of Parliament; and

c)Grant such other and further relief as to Your Lordships’ Court shall seem meet.

Attorneys at Law for the Petitioner

Settled by:

Ms Vijula Arulanantham
Attorney at Law

Mr M A Sumanthiran
Attorney at Law