Mr. Speaker - The Hon. (Dr.) Jagath Wickramaratne

¶ 01 Parliament met at 9.30 a.m.

¶ 02 Announcements

¶ 03 Summoning of Parliament

¶ 04 Whereupon the Secretary-General of Parliament read the following Gazette Notification:

¶ 05 Extraordinary Gazette No. 2423/04 – 2025.02.10

¶ 06 Part I: Section (I) – General Government Notifications

¶ 07 Speaker’s Announcement

¶ 08 By virtue of Standing Order 16 of Parliament, and at the request of the Hon. Prime Minister, I, Dr. Jagath Wickramaratne, Speaker of Parliament, hereby summon a Sitting of the Parliament of the Democratic Socialist Republic of Sri Lanka to be held at 9.30 a.m. on Friday, 14th February 2025.

¶ 09 Dr. Jagath Wickramaratne, Speaker.

¶ 10 Dated this 10th day of February 2025, At Sri Jayewardenepura Kotte.

¶ 11 Local Authorities Elections (Special Provisions) Bill: Determination of the Supreme Court

¶ 12 I wish to announce to Parliament that I have received the Determination of the Supreme Court in respect of the Bill titled “Local Authorities Elections (Special Provisions)”, which was challenged in the Supreme Court in terms of Article 121(1) of the Constitution and which had been heard before a Bench of three Judges.

¶ 13 Accordingly, two Judges constituting the majority of the Bench held that: - The Bill, read as a whole and in particular Clauses 2 and 3, is inconsistent with Article 12(1) of the Constitution and can be passed only with the special majority required under paragraph (2) of Article 84.

¶ 14 The remaining Judge of the Bench held that: - The Bill, as a whole or any provision thereof, is not inconsistent with the provisions of the Constitution and may be enacted with a simple majority of Parliament.

¶ 15 I order that the full Determination of the Supreme Court be printed in the Official Report of today’s Proceedings of the House.

¶ 16 Determination of the Supreme Court:

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

¶ 18 “LOCAL AUTHORITIES ELECTIONS (SPECIAL PROVISIONS) BILL”

¶ 19 S.C.S.D. No. 01/2025 Petitioner: M. Nizam Kariapper, Secretary, Sri Lanka Muslim Congress, “Dharussalam”, No. 53, Vauxhall Lane, Colombo 02. Counsel: Rauff Hakeem with Ahamed M. Nizam Kariapper and Chathurika Perera

¶ 20 S.C.S.D. No. 02/2025 Petitioner: Ibrahim Nisthar Mohommed Miflar, No. 237/6, Meeraniya Street, Colombo 12. Counsel: Farman Cassim, P.C. with Vinura Kularatne

¶ 21 S.C.S.D. No. 03/2025 Petitioners: 1. Upul Fernando Gamage, 109/2, Kawdana Road, Dehiwala. 2. Liyanage Shirantha Jayalath Perera, 635, Halgahadeniya, Angoda. Counsel: Boopathy Kahathuduwa

¶ 22 S.C.S.D. No. 04/2025 Petitioner: Kaushali Piumi Senerath Samaratunga Jayaweera, No. 34/7, Buthgamuwa Road, Kalapaluwawa, Rajagiriya. Counsel: Eraj de Silva, P.C. with Daminda Wijerathna, Janagan Sundaramoorthi and Zul Luthufi

¶ 23 Vs. Hon. Attorney-General, Attorney-General’s Department, Colombo 12. Respondent Counsel for the State: Nirmalan Wigneswaran, Deputy Solicitor General with Ms. Sureka Ahmed, Senior State Counsel and Ms. Prabashini Jayasekara, State Counsel

¶ 24 Before: Yasantha Kodagoda, P.C., J.; Janak De Silva, J.; Arjuna Obeyesekere, J.

¶ 25 The Court assembled for hearing at 10.00 a.m. on 24th and 27th January 2025. In view of certain issues that arose upon consideration of the written submissions filed by the parties, Court reconvened on 31st January 2025 to obtain certain clarifications.

¶ 26 A Bill in its short title referred to as the “Local Authorities Elections (Special Provisions) Bill” [Bill] was published in the Government Gazette of 1st January 2025. It was placed on the Order Paper of Parliament on 9th January 2025.

¶ 27 Four petitions bearing Nos. S.C.S.D. 01/2025, 02/2025, 03/2025 and 04/2025 were filed, challenging the constitutionality of the Bill. Upon receipt of these petitions, Court issued notice on the Hon. Attorney-General as required by Article 134(1) of the Constitution. The Petitioners and the Hon. Attorney-General were heard extensively.

¶ 28 Jurisdiction of Court

¶ 29 This Court exercises jurisdiction in terms of Article 120 of the Constitution to determine whether any Bill or any provision thereof is inconsistent with the Constitution. Article 123(1) requires the determination to state whether the Bill or any provision is inconsistent and, if so, with which provision(s), together with reasons. Consequential determinations under Article 123(2) include whether: - the Bill must comply with Article 82(1) and (2); - the Bill or any provision requires only the special majority under Article 84(2); or - the Bill or any provision requires a special majority under Article 84(2) and approval by the People at a Referendum by virtue of Article 83, and may specify amendments that would remove the inconsistency.

¶ 30 The Court’s jurisdiction is confined to the Bill as gazetted. Proposed Committee Stage Amendments are considered only insofar as they relate to specifying amendments that would remove an identified inconsistency; the Court cannot determine their constitutionality in the abstract. The Court also does not opine on policy merits; however, where policy, if enacted, would be unconstitutional, the Court must point it out. Articles 16 and 80(3) preclude questioning existing laws in these proceedings.

¶ 31 Outline of the Bill

¶ 32 - Clause 2: deems nomination papers already received for Local Authorities listed in the Schedule for elections not held as scheduled on 9th March 2023 to be of no force and effect, as if never submitted; provides for return of deposits. - Clause 3: provides for commencing steps to hold elections to the Local Authorities in the Schedule.

¶ 33 Petitioners’ contentions in brief: - S.C.S.D. 01/2025: the Bill violates fundamental rights of candidates who tendered nominations and infringes sovereign rights under Article 3; requires approval at a Referendum under Article 83 in addition to special majority. - S.C.S.D. 02/2025: as a 2023 candidate, asserts violations of Article 12 and sovereignty under Articles 3 and 4; requires Referendum and special majority. - S.C.S.D. 03/2025: accepted nominees claim legitimate expectation to contest based on submitted nominations; fear loss of nomination due to 25% youth quota under Act No. 30 of 2023; reliance on SCFR 69/2023, 79/2023, 90/2023 and 139/2023 directing EC to schedule Local Government Elections; contend Bill seeks to override judgments, violating multiple Articles, requiring special majority and Referendum. - S.C.S.D. 04/2025: alleges mala fides and collateral purpose; Clauses 2, 3, 4 inconsistent with numerous Articles; requires special majority and Referendum.

¶ 34 Previous legislation annulling nominations upon postponement were noted (e.g., Acts Nos. 24 of 1990; 2 of 2006; 30 of 2007; 55 of 2007; 28 of 2017). Nonetheless, the Court examines the present Bill independently.

¶ 35 Provincial Council List

¶ 36 The contention that the subject falls within the Provincial Council List is misconceived; Local Authority elections fall within the Reserved List.

¶ 37 Historical Context

¶ 38 Court summarized key background from Ranjith Madduma Bandara v. Mahinda Siriwardana and Others (SCFR 69/2023, SCM 22.08.2024), including: - Local Authorities elections held 10.02.2018; terms expired around 08.03.2022. - Terms extended to 19.03.2023; EC called nominations in January 2023; poll fixed for 09.03.2023; election not held. - Court found fundamental rights infringed by the Executive and by acts/omissions of the EC and the President/Minister of Finance resulting in non-holding of elections.

¶ 39 Purpose and Object of the Bill

¶ 40 Cabinet Memorandum justifications reflected in the Preamble: 1) To enable those newly registered in the 2024 register to vote and submit nominations. 2) To apply youth nomination requirements introduced by Act No. 30 of 2023. 3) The Ordinance lacks provision to recall nominations.

¶ 41 Additional “common sense” reasons were urged by the State (party/group changes, candidate disqualifications, political shifts, etc.). The Court held constitutional checks in Article 78(3) require Committee Stage amendments not to deviate from a bill’s merits and principles as distilled from the Cabinet Memorandum, Preamble, and bill provisions; reliance on extraneous reasons risks undermining this safeguard.

¶ 42 Articles 120, 121(1), and 78(1) collectively ensure pre-enactment constitutional review, as an aspect of People’s sovereignty under Articles 3 and 4. Standing Orders (including SO 61) and Article 78(3) limit Committee Stage amendments to those consistent with the Constitution and relevant to the subject matter; Parliament’s powers are not unfettered.

¶ 43 Characterization of Right to Vote/Right to Contest

¶ 44 Comparative jurisprudence surveyed: - USA: right to vote treated as fundamental, though level of scrutiny varies with context. - India: evolution from statutory characterization to recognizing freedom of voting as a facet of Article 19(1)(a) (PUCL), while the right to contest remains a constitutional (not fundamental) right, subject to statutory qualifications/disqualifications. - Sri Lanka: right to vote recognized under Article 14(1)(a) as freedom of expression; franchise in Article 3 has been interpreted to include both voting and standing for election at Local Authorities; Article 4(e) textually confined to President, Parliament, Referendum and does not itself extend to Local Authorities, but Article 3’s broader concept of sovereignty and franchise does.

¶ 45 The Court agrees: - Freedom to vote forms part of Article 14(1)(a). - The right to contest is not an aspect of Article 14(1)(a) freedom of expression. - Both the right to vote and the right to contest at Local Authorities elections fall within “franchise” in Article 3 (sovereignty).

¶ 46 Applicable Electoral Register

¶ 47 Sections 6 and 43 of the Local Authorities Elections Ordinance (Ordinance) refer to the “register of electors for the time being in operation/force.” Interpreting “for the time being,” and in light of the Registration of Electors (Amendment) Act No. 22 of 2021 introducing three supplementary lists each year, the Court holds: - “Electoral list for the time being in force” in Sections 6 and 43 refers to the electoral list, including any certified supplementary list under the Act, in force on the date actual voting takes place.

¶ 48 Rationale: - Enhances, rather than negates, voting rights of newly registered electors without restarting the electoral process. - Consistent with legislative intent behind the 2021 amendment enabling newly 18-year-olds to vote at the earliest election. - Administrative inconvenience cannot justify curtailing constitutional rights; official poll cards are not a prerequisite to vote; logistics can be managed by the Election Commission.

¶ 49 Accordingly, there is no justification to cancel nominations to allow 2024 registrants to vote; they can already vote on the poll date register. Cancelling nominations on this basis would be irrational and unreasonable and inconsistent with Article 12(1).

¶ 50 Right to Contest

¶ 51 Eligibility to contest is not dependent on registration on the electoral register. Under Section 8 of the Ordinance, qualification depends on being qualified to have one’s name entered (as at the commencement date of preparation/revision of the relevant parliamentary register) and ordinary residence on 1st June of that year in the electoral area, subject to disqualifications in Section 9. Thus, the Preamble’s premise that 2024 registrants require cancellation of 2023 nominations to secure their right to contest is legally misconceived.

¶ 52 Competing franchise claims exist: those already nominated vs. those newly qualified to contest since 2023. Both are aspects of franchise under Article 3. The State’s argument that previously nominated candidates will have another chance at fresh nominations does not cure the constitutional impingement caused by cancelling accepted nominations; private decisions of parties/independent groups cannot remedy a constitutional inconsistency.

¶ 53 Balancing competing rights

¶ 54 Where competing constitutional rights arise, courts conduct a balancing exercise (comparative guidance from UK cases such as Campbell v. MGN and Re S). The Court proceeds on that approach in the subsequent analysis (as set out in the full determination).

¶ 55 Conclusion (majority)

¶ 56 - The Bill, read as a whole and in particular Clauses 2 and 3, is inconsistent with Article 12(1) of the Constitution and can be passed only with the special majority required under Article 84(2).

¶ 57 Conclusion (minority)

¶ 58 - The Bill, as a whole or any provision thereof, is not inconsistent with the Constitution and may be enacted with a simple majority of Parliament.