The Supreme Court yesterday dismissed in limine the presidential election petition filed by the Joint opposition candidate General (retd) Sarath Fonseka, challenging the election of Mahinda Rajapaksa as the President of Sri Lanka, consequent to the polls held on January 26, 2010.

The Court upheld all objections filed by the first respondent Mahinda Rajapaksa and others.

The preliminary objections were:

(a) The reliefs sought in the prayer to the petition are misconceived in law and cannot be granted by the Court.

(b) The petitioner had failed to join the necessary parties as respondents.

(c) The petitioner has failed to furnish material facts in terms of Section 96(c) of the Presidential Elections Act No. 15 of 1981. The petition does not conform to the requirements of Section 96 (d) of the Act No. 15 of 1981 in that it does not set forth full particulars of any corruption or malpractices, the petitioner has alleged.The first respondent brought to the notice of the Court that the petitioner had not sought a declaration, that the election was void, as provided in Section 94(a) of Act No. 15 of 1981.

The Judgment by the Chief Justice Asoka de Silva with Justices Dr. Shirani Bandaranayake, K. Sripavan, P. A. Ratnayake and S. I. Imam agreeing, explained that in the matter before the Court the petitioner had obtained most of the facts in the affidavit "from the supporters of the New Democratic Front and other political parties, who supported" the petitioner at the election. The name of the supporters or at least the name of the political parties from whom such information was obtained has not been disclosed.

The judgment said: "In the circumstances, as the same reasoning of Chief Justice Sharvananda in the case of Jayasinghe vs Jayakody, the Court does not dismiss the election petition on this ground alone, but holds that the affidavit filed in this case is defective.

The totality of the circumstances established defects in the pleadings of the petitioner. It is the duty of the Court to examine the petition and make a decision to reject it if it is misconceived in law.

Failure to file proper pleadings is fatal to an election petition and no amendments of the pleadings are permissible at this stage. If a proper petition has been filed, the Court may, upon such terms as to costs or otherwise as the Court may deem fit, allow the particulars of any corrupt practice specified in the petition to be amended or amplified in terms of section 97 of the Act.

However, if the pleadings do not disclose proper relief worth to be tried by Court, the pleadings are liable to be struck off and the election petition is liable to be dismissed in limine."

The Court upheld the preliminary objections by the respondents and dismissed the petition in limine.

The judgment added that what was required for a scrutiny of the ballots in terms of Section 94 of the Act was "a majority of lawful votes" and not a "majority of the votes".

A scrutiny is possible only on the ground of a claim made by an unsuccessful candidate who obtained a majority of lawful votes.

The petitioner does not become entitled to the relief in respect of a scrutiny.

The judgment also included that when it comes to dealing with the corrupt practice of treating and bribery, it has to be kept in mind that the first respondent was the Executive President on the material dates referred to in the petition.

Accordingly his official position requires him to have meetings with various groups of people to perform his duty.

The names of the persons who participated in the treating had not been given. The participants are identified as "artistes", "graduates", "Ayurveda physicians" etc.

Pleadings are also insufficient for the Court to arrive at an inference of a corrupt intention, more so in the context of the fact that the first respondent was performing his duties as the Executive President.

D. S. Wijesinghe PC, appeared with Nihal Jayamanne PC, S. S. Sahabandu PC, D. P. Mendis PC, Palitha Kumarasinghe PC, Dr. Jayatissa de Costa, PC Upali Senaratne, Sagara Kariyawasam, M. U. M. Ali Sabry, Ms. Kaushalya Molligoda, Chamila Jalagoda and Isuru Somadasa, instructed by Athula de Silva for the first respondent, Mahinda Rajapaksa.

W. P. G. Dep. PC, Solicitor General, appeared with Indika Demuni de Silva, Deputy Solicitor General, Senior State Counsels, A. H. W. D. Nawaz and M. Gopallawe instructed by S. Pieris for the twenty second respondent, the Elections Commissioner.

Upul Jayasuriya with Sandamal Rajapaksa, instructed by Asoka Samararatne appeared for Petitioner Sarath Fonseka.

Manohara de Silva PC, appeared for respondent Wimal Weerawansa.