It is both political and legal

Two reasons why murder convict Premalal Jayasekara was allowed to take oaths as an MP

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Sri Lanka's convicted murderer Premalal Jayasekara (L) gestures after sworn in as a member of Parliament from the ruling party in front of Speaker of the Parliament of Sri Lanka Mahinda Yapa Abeywardena (R), in Colombo on September 8, 2020. Jayasekara becomes the first convict facing a death sentence to become a legislator in Sri Lanka -Ishara S. KODIKARA / AFP
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By P. K. Balachandran

COLOMBO – There has been great political furore and media anger against allowing a ruling Sri Lanka Podujana Peramuna (SLPP) member, Premalal Jayasekara, convicted for murder and sentenced to death,  to take his oaths as a Member of Parliament. But there were two reasons why Jayasekara was allowed to do so. One was political and the other was legal.

The politics of it

From the political point of view, the SLPP needs to have every single one of its 149 MPs to be present and voting when the controversial 20th Amendment to the Constitution comes up for voting next month. As on date, the SLPP-led alliance has 149 MPs, but it needs 150 plus two or three more to comfortably pass the constitutional amendment with the required two-thirds majority. In this dire context, Jayasekara’s vote is critical. Till now, the SLPP’s managers have not managed to rope in the extra MPs from the ranks of the opposition, though some crossovers appear likely.

Legal view

The legal basis of the decision was clearly stated by the Court of Appeal to which Premalal Jayasekara had appealed from prison. The Court struck down the Prisons Commissioner’s decision not to allow Jayasekara to attend Parliament and stated the legal grounds for it. However, at the end of it all, the Court left the final decision to the Speaker of Parliament, as the matter fell within the jurisdiction or the privileges of Parliament.

The Speaker exercised his discretion and allowed the MP to take his oaths and attend Parliament as any prisoner whose appeal was pending could do. This kicked up a furore in Parliament and much hostile commenting in the press.

President Gotabaya Rajapaksa responded to the barrage of criticism politically by saying that the Opposition should blame the previous government (their Yahapalanaya government) for the Court of Appeal’s decision, as the judges in it were appointed by a Constitutional Council set up under their regime. Be that as it may, the crux of the matter is in how the Court of Appeal viewed it from a legal standpoint.

According to the Court’s ruling as reproduced in the state-run English weekly on Sunday (13), a two-judge-bench of the Court of Appeal, comprising Justice (President) A.H.M.D. Nawaz and Justice Sobhitha Rajakaruna, decided to grant an interim order permitting the petitioner to attend Parliament for a number of reasons.

The petitioner’s counsel, Romesh de Silva, had argued that the petitioner must be permitted to attend the sittings of Parliament under Section 331(4) of the Code of Criminal Procedure Act, No.15 of 1979, which specifically provides that where an appeal has been lodged against a conviction, the execution of the sentence should be stayed and that the person would be held in remand custody. Further Section 20 (3) of the Bail Act says that an accused who is convicted of murder and sentenced to death is received into a remand prison and as such he should be treated as a remand prisoner.

Sivanesathurai Chandrakanthan, better known as Pillayan, the Batticalao MP, has a murder case against him and has been in remand pending judgment. And he is allowed to attend Parliament. Jayasekara, on the other hand, has been convicted. But since his case is on appeal, he is a remand prisoner and as such can attend Parliament.

The Court held that petitioner Jayasekara would be “clothed with all the rights” of an elected Member of Parliament, until his election is set aside by a court of competent jurisdiction. It further held that the Commissioner of Prisons was not competent to prevent the petitioner from attending Parliament on instructions received from the Attorney-General. The petitioner’s main plea had been that the letter from the Commissioner of Prisons preventing him from attending Parliament be quashed.

Jayasekara contested the parliamentary elections in the Ratnapura district on August 5, 2020 and polled 142,037 votes to come second in the district. Earlier, on July 31, 2020 he was convicted of murder by the High Court of Ratnapura in Case bearing No. HCR 71/2016 and sentenced to death for a murder committed in 2015. On August 4, 2020 he filed an appeal in respect of the conviction and sentence.

The petitioner stated that he had made several requests to the Prisons Commissioner to be allowed to attend Parliament, which had been summoned to meet on August 20. But he was not permitted to do so.

A former Attorney-General and President’s Counsel, Palitha Fernando, then wrote to the Attorney-General on August 16, 2020 urging that the petitioner be permitted to attend sittings of Parliament as Section 331(4) of the Code of Criminal Procedure Act, No.15 of 1979 (the Code) specifically provides that where an appeal has been lodged against a conviction, the execution of the sentence should be stayed and that the person would be held in remand custody.

Palitha Fernando’s letter elicited a response from the Attorney-General, who said that a firm of legal consultants to the Commissioner General of Prisons had made a demand that the petitioner be permitted to attend Parliament.

On August 28, the Secretary General of Parliament made a request to the Commissioner General of Prisons that the petitioner be brought before Parliament on September 8, 2020 in order for him to take his oaths as an Member of Parliament as he had been gazetted in terms of Section 62 of the Parliamentary Elections Act, No.1 of 1981 as an elected Member of Parliament.

The Court of Appeal quoted Halbury’s Laws of England, Parliament (Volume 78 (2018)) containing passages on Privileges of Parliament to say that courts do not have jurisdiction to determine the rights of members to sit in either House of Parliament and have nothing to do with questions affecting their membership except in so far as it has been specially designated by law to act in such matters.

“In a nutshell, we have taken note of the important omission in the constitutional provision namely, no person who has been elected as an MP has been prohibited from taking oaths, which seems to be the first step in a sequence of events culminating in sitting and voting in Parliament, which subsequently takes place. In our view, we consider oath taking to be a deliberate omission. Therefore, since the election of this Member of Parliament has not been invalidated so far, the interim relief sought that he be permitted to attend Parliament has to be allowed, along with notice of this application,” the Court of Appeal said in its ruling.

“What would subsequently take place is within the remit of the powers of the Speaker or anyone assigned by law for that purpose,” the Court added.

-P K. Balachandran is a senior Colombo-based journalist who in the past two decades, has reported for The Hindustan Times, The New Indian Express and the Economist

 

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