Leader of the Opposition Ranil Wickremesinghe, in a letter to the Speaker W. J. M. Lokubandara, said that Ministers Johnston Fernando and Indika Bandaranayake ceased to be Members of Parliament on January 18, 2010. Parliament was dissolved on February 9, 2010.

He said that Article 44(1)(b) requires the President to appoint Ministers from among members of Parliament. Therefore where a person ceases to be a Member of Parliament, he is automatically disqualified from holding Ministerial office.

"I write with reference to the Gazette Notification (1646/6 of 22 March, 2010) issued by the Commissioner of Elections nominating Messrs D. M. Bandaranayake and Anura Gopallawa to fill two vacancies in Parliament and the Gazette Notification (1644/28 of 11th March, 2010) nominating Mr. M. M. M. Mustafa to fill another vacancy in Parliament.

"In this connection I wish to draw your attention to a statement attributed to Cabinet Spokesman Prof. G. L. Peiris widely reported in the media, where he quotes the Attorney General who has reportedly opined that neither Mr. Johnston Fernando nor Mr. Indika Bandaranayake would lose their seats in Parliament. He has further stated in reply to a question regarding the Gazette Notification issued by the Commissioner of Elections that the Government accepted only the opinion of the Attorney General.

"As you are aware this is a matter that concerns the rights and privileges of Parliament and there is neither provisions nor the necessity to have consulted the Attorney General in this regard. The Attorney General’s duties as you know are confined to the scope of Article 77 of the Constitution pertaining to a likely contravention of paragraphs (1) and (2) of Article 82 of the Constitution.

In any event the Attorney General has already expressed his opinion regarding the position of Messrs Johnston Fernando and Indika Bandaranayake and there was therefore no need to seek his opinion a second time and certainly not after the publication of the Gazette Notification by the Commissioner of Elections.

If at all it is the Commissioner of Elections who should have sought the opinion of the Attorney General.

Prof. Peiris has also been heard to say that the position should be as it existed on the date of the dissolution of Parliament.

The Secretary-General of Parliament was informed that Messrs M. M. M. Mustafa, Johnston Fernando and Indika Bandaranayake were expelled from the United National Party by letter from the General Secretary of the United National Party dated 17th December, 2009.

Mr. Mustafa filed no action as contemplated in Article 99(13)(a).

Mr. Johnston Fernando and Mr. Indika Bandaranayake did file two actions but withdrew the same.

Consequently in terms of Article 99(13)(a) they ceased to be Members of Parliament after the expiration of one month from 17th December, 2009 that is 18 January, 2010. A date well before the dissolution of Parliament on the midnight of 9th February, 2010.

Consequently any action taken by the Commissioner of Elections to gazette the nomination of new Members to fill those vacancies relates back to the 18th of January, 2010, well before the dissolution of Parliament.

The principle is nunc pro tunc which both the Attorney General and Prof. G. L. Peiris should be well aware of.

Referring to Article 47 Prof. Peiris stated that they continue to hold their executive positions until April 8. Article 44(1)(b) requires the President to appoint Ministers from among Members of Parliament. Therefore, where a person ceases to be a Member of Parliament, he is automatically disqualified from holding Ministerial office.

This matter should have been discussed with Party Leaders before the views of the Attorney General was sought, and certainly before any discussions with Party Leaders, the Commissioner of Elections should have been written to and his reply obtained. Furthermore, the Attorney General has no power vested in him to interpret the Constitution; that lies elsewhere.

In these circumstances, I presume that Messrs D. M. Bandaranayake, Anura Gopallawa and M. M. M. Mustafa will be able to take oaths as Members when Parliament resumes on the 6th of April, 2010."