Constitutional gridlock and petitions against a Parliamentary election
Posted on November 14th, 2018

With the suspension of the gazette notification dissolving Parliament till the 7th December, the political uncertainty in the country is set to continue for three more weeks. When one looks at the petitioners who went to the Supreme Court against the President’s decision to dissolve Parliament and hold fresh elections, we cannot help but notice that they were the same political parties that colluded with one another to change the local government elections system in August 2017 in order to delay holding elections to local government bodies that had been dissolved more than two years earlier in March 2015. As the pressure to hold the local government elections which had been delayed by two years and four months mounted, the government made changes to the local government electoral system creating constituencies and then delayed the local government elections further by citing delimitation disputes. The manner in which the local government elections system was changed was also unprecedented.

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Instead of gazetting a Bill to change the system of elections and then giving the people an opportunity to have its constitutionality examined by the Supreme Court, the entirely new system of elections was brought as committee stage amendments to a Bill that had been gazetted and then introduced in parliament to correct some technical glitches in the local government elections law. Thus, the Bill that was gazetted and introduced in parliament and even read the second time, was not the Bill that was finally passed by parliament after the committee stage, but something totally different. Having changed the local government elections system in this devious manner, the then government appointed a delimitation committee and delayed the local government elections further by citing delimitation disputes. After having run around in circles for several months and after dodging persistent questions from journalists about the delay in holding local government elections, the government then got some of their supporters to file action in courts against the delimitation of wards in a large number of local government institutions so as to delay the election further.

The only reason why we had a local government election in February this year was because the head of the Elections Commission Mahinda Deshapriya announced that they would go ahead and hold elections to the 93 local government institutions in respect of which there were no delimitation disputes real or contrived. At that point the government caved in and decided to have elections to all the local government institutions because the damage would be done anyway even if elections were held for a limited number of local government bodies. The cases that had been filed against the delimitation report were then miraculously withdrawn to enable the local government elections to be held. That made it only too obvious that the judicial process was being abused by that government to delay elections. One month after the local government elections system was changed in the manner described, the government also moved to change the system of elections to the provincial councils as well. There was an urgent need to change the system of elections to the provincial councils because the Sabaragamuwa, North Central and Eastern provinces were to stand dissolved in late September and early October 2017.

Once those provincial councils stood dissolved, the process of holding elections would start automatically without the need for anybody to initiate the process. When a provincial council stands dissolved, the elections commissioner has to fix the dates to call for nominations within a certain period. Then the returning officers in the districts where PC elections were being held will have to fix the date of the poll, once again within a specified period. So if the intention of the government was to postpone elections, they had to move fast and change the system of elections so that a delimitation committee can be appointed and the elections process stalled. Sure enough in September 2017, just a day or two before the Sabaragamuwa, North Central and Eastern provincial councils were to stand dissolved, the government changed the provincial councils elections system. Once again the method in which this change was effected was by bringing sweeping committee stage amendments to a Bill that had originally been gazetted and introduced in Parliament to increase women’s representation in the provincial councils.

Horse trading to dodge PC elections

On the day that Parliament was to make changes to the system of elections to provincial councils, at around 5.00 pm the Attorney General by virtue of the powers vested in him under article 77 of the Constitution informed the Speaker that the Bill to increase women’s representation in parliament which had now been changed completely to become a Bill to change the system of elections to the PCs, could not be passed without a two thirds majority in parliament. When the AG said that the government would need a two thirds majority in parliament to get that Bill passed, the government which was desperate to stop the provincial councils election from taking place at any cost, filibustered in parliament until they were able to collect enough MPs to make up a two- thirds majority. Even when the two-thirds majority had been assembled, that was not the end of the story. Some of the smaller parties made that an occasion to extract their pound of flesh. They demanded that the proportion of candidates elected on the basis of the constituencies and proportional representation be changed from 60%-40% to 50%-50%.

This major change to the elections law was made at the last moment literally on the floor of the house in order to prevent the smaller parties from voting against the proposed amendments. Thus we have the anomalous situation where the proportion of constituency-based seats and proportional representation seats is 60%-40% at the local government level and 50-50 at the provincial council level! So shameless was that government’s headlong scramble to avoid holding the provincial council elections. To this day no provincial council elections have been held and now six provincial councils are without functioning provincial councils. The manner in which the PC elections have been stalled is somewhat different to the manner in which the local government elections were postponed. At the LG level, the delay was executed by manufacturing delimitation disputes. At the provincial council level it was by delaying the delimitation process itself.

According to the Act that was passed in September 2017 changing the provincial councils elections system, the delimitation report had to be completed within a period of four months and then tabled in parliament by the Minister in charge of the subject. Within one month of it being tabled in Parliament, the delimitation report had to be passed with a two- thirds majority. Even though the delimitation report was tabled in parliament in March this year, it was not passed within the stipulated period of one month. Thereafter, there was a long delay of several months. When it seemed as if the Joint Opposition was about to go to the Supreme Court to get a ruling that the amendments made to the Provincial Councils elections law were now defunct, the government suddenly placed the delimitation report on the order paper and after a debate, even the Minister who presented it to Parliament voted against it to buy further time.

Under the amending Act of September 2017 if Parliament does not pass the provincial councils delimitation report, the next step in the process was for the Speaker of Parliament to appoint a Review Committee comprising of the Prime Minister and four other members which would make recommendations within a period of two months to the President and the latter was to gazette the delimitation report with any changes made by the Review Committee. There was no provision in the law to extend the two month period. This period expired on the 28th of October and no report has been submitted by the Review Committee to the President. Under the provisions of Section 6(2) of the Interpretation Ordinance, if an amendment brought to an Act is, for some reason, inoperative then the previous provisions of the law before amendment continue to apply. Thus, the so called independent Elections Commission had the power to call for nominations to the delayed provincial councils, any time after the 28th of October but nothing happened.

EC Member allergic to elections The Supreme Court in the 1998 case of Karunatilleke and Another Vs Dayananda Dissanayake, Commissioner of Elections made it quite clear that the task of the Elections Commissioner was to hold elections and not to collude with the government in postponing polls. That judgment also stated the extent of the Elections Commissioner’s discretion in this regard. There was no need for the Elections Commissioner to go before the Supreme Court to obtain a ruling as to whether the Act that sought to change the system of elections to the PCs was inoperative. They could have if they wanted to, simply started the process of having elections according to the old system and told anyone who was against holding an election to go before the SC if they so wished. However another option available to them after the 28th of October was going before the Supreme Court to obtain a ruling on the matter. However very significantly, not one of the three members of the Elections Commission ever went before the SC in that regard.

However, when the President dissolved Parliament and declared a general election, one member of the Elections Commission petitioned the Supreme Court against the dissolution of Parliament and the calling of an election. In doing so he was joining the very same political parties the UNP, the TNA, the JVP and two Muslim political parties that colluded with one another to change the local government elections system and the provincial council elections system in violation of all the provisions in the Constitution and the Standing Orders of Parliament so as to delay elections. Thus the Elections Commission has been complicit with the UNP, TNA and JVP in delaying elections. When an election is declared, they go to courts against it, but do not go to courts against the indefinite postponement of elections! Such is the situation that Sri Lanka finds itself in today. When the yahapalana government was formed after the August 2015 general election, they divided up the government and opposition positions among themselves with the JVP and TNA taking over the opposition and the UNP and UPFA taking over the government and they appointed a Constitutional Council consisting only of yahapalanites.

The partisanship of some members of the Elections Commission is only too plain. The reason why that government delayed holding the local government elections is because of the fear that it would lose. When it was finally held they did lose. The reason why they have postponed the provincial council election is also because of the fear they would lose. The reason why they went to court to challenge the dissolution of Parliament and the calling of a general election is also because they believe they will lose. All this while, the conventional wisdom in this country was that no political party should postpone elections because the people will turn against them when an election finally comes along. If that is so, what is the harvest that the present lot can expect to reap after having made it so painfully obvious that they are against the holding of any election? What kind of a political party would go to courts against the holding of an election and when the court issues a stay order temporarily suspending the dissolution of Parliament and the elections process until the end of the hearing, hail that as a victory?

We were given a demonstration of the extent of the yahapalana reluctance to hold elections when in August this year, the yahapalana government voted against their own PC constituencies delimitation report just to buy an additional two months time. So that is the kind of people who have petitioned the Supreme Court against the Parliamentary election. Once a government paints itself into a corner where it is unable or unwilling even to think of holding elections and will go to any lengths to avoid having one, where do we go from there?

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