by C.A.Chandraprema

Mark Fernando’s 1998 judgement to take centre stage

New constitution or 20A needed to postpone impending PC elections

March 4, 2017, 7:10 pm
Not holding the local government elections has become a major part of the survival strategy of this government. While the local government elections have been put off due to complications in the delimitation of wards, elections for the Eastern, North Central and Sabaragamuwa provinces will be due at the end of the third quarter of this year. According to Article 154E of the Constitution, Provincial Councils will unless sooner dissolved, continue for a period of five years from the date of its first meeting and upon the expiration of this period, will stand automatically dissolved.

According to section 10(1) of the Provincial Councils Elections Act, No. 2 of 1988, Within one week of the dissolution of a Provincial Council by reason of, the operation of article 154E or dissolution by the Governor under Article154B (8) (c) of the Constitution, the Commissioner of Elections shall publish a notice of his intention to hold an election to such Provincial Council. In terms of these provisions, the elections to the Sabaragamuwa, North Central and Eastern Provinces will be due in October this year when they complete five years from the date of their first meeting in October 2012.

The government was able to avoid holding the local government elections because of the complications arising from the change in electoral systems. However they will not have the same excuse to postpone the elections to the three PCs that will be completing five years in October this year and the Elections Commission will be compelled to hold the elections, when the terms of the PCs lapse in October.

Justice Mark Fernando

Minister Faizer Mustapha whose obvious preference is to postpone the day of reckoning as much as possible, tried to float the theory that because President Maithripala Sirisena was elected for a six year term, he would rule the country for six full years, until 2020 notwithstanding the 19th Amendment which shortened the term of office of the President to five years. However that elicited a pointed rebuttal from Jayampathy Wickremeratne, Manohara De Silva and Chrishmal Warnasuriya, who all pointed to the transitional provision in Article 49(1) (b) of the 19th Amendment which stated that the persons holding office as the President and Prime Minister on the day preceding the enactment of the 19 A will continue to hold such office after such date, subject to the provisions of this Amendment. This just about lays to rest speculation over when the next presidential election has to be held.

After the 19th Amendment, article 30(2) of the constitution stands amended to state that The President shall hold office for a term of five years. In fact, President Maithripala Sirisena himself has gone on record saying that he willingly sacrificed one year of the term of his office. That was one of the reductions of executive power that were touted to have been achieved by the 19th Amendment. It was clear from the spin that Minister Mustapha was trying to give to the constitutional provisions as to the duration of the president’s term of office that this government would prefer to push back elections as far back as possible. This has worked with regard to the local government elections, but will not work when it comes to the next Presidential election which in terms of the present Constitution as amended by 19A, will have to be called by the last quarter of 2019. This alone would give many people in the yahapalana coalition butterflies in their stomach. This has now been exacerbated by the elections to the Sabaragamuwa, North Central and Eastern Provinces coming due later this year. Given the propensity of the government to avoid holding elections, the first question that arises is whether there is anything that the government can do to postpone the provincial council elections as well?

Mark Fernando’s unequivocal judgment

In this context, the 1998 Supreme Court case of Karunatilleke and another vs. Dayananda Dissanayake, Commissioner of Elections. heard before a three member bench comprising of Chief Justice G.P.S. De Silva, Mark Fernando and D.P.S.Gunasekera will be of paramount importance. The judgment in this case was written primarily by Justice Mark Fernando with Chief Justice G.P.S. De Silva and Justice  D.P.S.Gunasekera agreeing. This was a judgment given in a Fundamental Rights application made by Sunanda Deshapriya and Waruna Karunatilleke against the postponement of elections to five provincial councils in 1998. The Five year terms of the Provincial Councils of the Central, Uva, North-Central, Western and Sabaragamuwa provinces came to an end in June 1998.  Section 10 of the Provincial Councils Elections Act, No. 2 of 1988, provides that within one week of the dissolution of a Provincial Council by reason of the operation of Article 154E of the Constitution the Commissioner shall publish a notice of his intention to hold an election to such Council.

The Notices under section 10 of the Act were duly published in June, 1998. The nomination periods for the five councils which fell on slightly different dates was completed by 15 July 1998. Section 22 (1) of the Provincial Councils Elections Act, No. 2 of 1988 required every returning officer, soon after the conclusion of the nomination proceedings to publish a notice specifying the date of poll which should be a date not less than five weeks or more than eight weeks from the date of publication of the original notice of intention to hold such election.

(It should be noted that there is a major difference between local government and provincial council elections on the one hand and presidential and parliamentary elections on the other. When it comes to presidential elections, according to Section 2 of the Presidential Elections Act (No. 15 of 1981) the Commissioner of Elections will by order published in the Gazette, fix the date of nomination of candidates and date on which the poll shall be taken after the President declares a presidential election. With regard to parliamentary elections, according to section 10 of the Parliamentary Elections Act No: 1 of 1981, the President himself will in the order dissolving parliament, declare the period in which nominations will be received, and the date on which the poll will be taken.  However, when it comes to Provincial Council elections, According to Section 10 of the Provincial Councils Elections Act No. 2 of 1988, the Elections Commisioner can fix only the period in which nominations can be received by the returning officers of each administrative district of the councils in which the elections are to be held. According to section 22 of the Provincial Councils Elections Act No: 2 of 1988, it is the returning officer of each district who has the power to fix the date of the poll. In terms of the local government elections law, it is the returning officer of the district who will publish notice of holding the election, fix the nomination period and also the date of the poll.)

Coming back to Justice Mark Fernando’s judgment in the 1998 case, what happened there was that the elections officers in all 12 districts where elections were to be held for the five provincial councils, published notices fixing 28 August 1998 as the date of poll. But the poll was not held on that day. All the election officers in all 12 districts had given notice that postal ballot papers would be issued on 4 August 1998. However, by telegram dated 3.8.98, the respective returning officers suspended the postal voting that was fixed for 4.8.98 and no reasons were given for such suspension. The very next day, on 4.8.98, the President issued a Proclamation under section 2 bringing the provisions of Part II of the Public Security Ordinance into operation throughout Sri Lanka, and made the following Regulation under section 5 : “For so long, and so long only, as Part II of the Public Security Ordinance is in operation in a province for which a Provincial Council specified in Column I of the Schedule hereto has been established, such part of the Notice under section 22 of the Provincial Councils Elections Act, No. 2 of 1988, published in the Gazette specified in the corresponding entry in Column 11 of the Schedule hereto, as relates to the date of poll for the holding of elections to such Provincial Council shall be deemed, for all purposes, to be of no effect.”

Justice Fernando observed that this Regulation did not purport to cancel the five elections altogether, but only to cancel the particular date of poll 28 August 1998 which had already been fixed by notices under section 22 of the Provincial Councils Elections Act. Although speedy elections were undeniably a matter of paramount public importance, the Elections Commissioner did nothing on and after 4 August 1998 (when the postal voting was cancelled) to fix another date of poll. If for any reason, which falls within the ambit of ‘any emergency or unforeseen circumstances’, the poll cannot be taken on the day specified by the returning officer under section 22 (1), section 22 (6) of the PC Elections Act gives the Commissioner the power to appoint another day. However, the Elections Commissioner’s position was that the emergency regulation mentioned above had been validly made under section 5 of the Public Security Ordinance, and therefore, he ‘had no alternative but to refrain from taking any further steps towards the holding of the Provincial Councils Elections’.

CBK’s 1998 emergency regulation

The conclusion that Justice Fernando came to was that the Elections Commissioner did not consider whether the above mentioned Regulation was valid and what his powers and duties were, but tamely acquiesced in the indefinite postponement of those elections. Since Article 154A contemplates the continued existence of elected Provincial Councils, it follows that elections must not be delayed more than is really necessary. The power to fix a new date must therefore be exercised whenever the circumstances demand it, and especially where the taking of the poll is prevented by unlawful means. Justice Fernando observed  that the Elections Commissioner has been entrusted by Article 104 of the constitution with powers, duties and functions pertaining to elections, and has been given guarantees of independence by Article 103, in order that he may ensure that elections are conducted according to law; not to allow elections to be wrongfully or improperly cancelled or suspended, or disrupted, by violence or otherwise.

Justice Fernando held that the above mentioned Regulation was not a valid exercise of power under section 5 of the Public Security Ordinance stating that it is not an emergency regulation. It has, rather, the character of an order, purporting to suspend notices lawfully issued under the PC Elections Act. It was also observed that during the period concerned, there was no known threat to national security, public order, etc., which warranted the postponement of the elections. The petitioners had pointed out that the SAARC Summit had been held in Colombo, with the participation of the Heads of Member States during the last week of July 1998. Accordingly, the suspension of the notices of the PC election polling date by means of an emergency regulation in early August 1998 was arbitrary and unreasonable.

This Supreme Court judgment makes it difficult, if not impossible to postpone the upcoming provincial council elections in the Eastern, Sabaragamuwa and North Central provinces even if the government tries to invoke a state of emergency to do so. In mid-1998 what we had in this country was an unpopular government that was too scared to hold elections. When elections to five provincial council elections came due in June 1998, the Chandrika Kumaratunga government tried to postpone the elections by declaring a state of emergency and promulgating regulations canceling the date of the elections which had been made in terms of the PC law which kicks in automatically when the terms of the PCs lapse after completing their five year term.

Govt. caught in a tangled web

It is significant to note that even in 1998, at the height of the war with the LTTE, and the spectacular, World War II scale debacles that the government was suffering at the hands of the LTTE during that period, the Supreme Court did not countenance the postponement of elections by means of invoking emergency laws. What that means is that today, the possibility of the government trying to postpone the elections by invoking the emergency law is virtually non-existent. Hence the flashpoint of the political crisis will upon us sooner than any one of us thought. The only way the government will be able to avoid holding the elections to the three PCs due in October this year will be to either introduce a new Constitution with a new electoral system or at the very least, introduce the new electoral system on its own as the 20th Amendment so that the PC elections can be postponed on the pretext of delimiting the electorates.

If the government was fighting shy of holding the local government elections due to the fear of doing badly, the elections to the three PCs that complete their terms in October this year could be worse. If the election is held in a part of the country instead of the whole country, Joint Opposition activists from other parts of the country will come to the provinces in which elections will be held for the campaign. The Joint Opposition has always been better than the government at drawing crowds and restricting the election to just a part of the country may turn out to be a costly mistake. If on the contrary, the election to the LG institutions is held countrywide, the activists of the JO will be restricted to their own areas. The various maneuvers taking place on the political front indicate that the constitution making process may come to the fore between now and October this year.

We see that the NGOs in the yahapalana coalition have formed an umbrella organization to push their agenda in the constitution making process. Then there are reports that the Steering Committee of the Constitutional Assembly will be sitting continuously from now on to draft the new constitution. Various realignments are taking place within the government with Athureliye Rathana Thera dumping the UNP and aligning with the Sirisena camp. Words are being exchanged between the UNP and the SLFP (Sirisena faction) about whether a referendum should be held or not. With the Constitution or at least the 20th Amendment being necessary for the government’s very survival in the coming months, the debate about the abolition of the executive presidency has also come to a head. The UNP and some members of the Sirisena faction like Dr Rajitha Senaratne appear to feel that the abolition of the executive presidency should be a part of the constitution making process whereas the SLFP (Sirisena faction) has gone on record as saying that the president’s manifesto agreed only to constitutional amendments that would not require a referendum – which is in effect to say that the executive presidency will not be abolished because that necessitates a referendum.

There is obviously a school of thought that the new constitution will have the best chance of being accepted by the people if the abolition of the executive presidency and electoral reform are incorporated in it because those were the principal constitutional pledges given to the people at the last elections. However the Sirisena faction appears to be hell bent on going through constitutional reform without abolishing the executive presidency. So we are bound to see serious conflicts within the government on this matter in the coming months. Basically, those like Dr Rajitha Senaratne and Mangala Samaraweera are right in rooting for a referendum and the abolition of the executive presidency because that will give the constitution the best chance of being able to get the support of the people. However that would seriously undermine President Sirisena and all those who are now allied with him.

One sees that Athureliye Rathana Thera who recently became independent from the UNP is now trying to encourage President Sirisena to form his own government by floating the theory that neither the UNP nor the UPFA/SLFP won the 2015 August parliamentary election and that it was only Sirisena who had a proper mandate to govern. The expectation probably is that Sirisena will be able to form a government with his segment of the SLFP and a large number of UNPers. Those of Rathana Thera’s ilk probably think this will be their ticket to win a local government or provincial council election – by unifying the SLFP vote behind Sirisena after forming an SLFP government. However, there are serious questions whether this will work.

President Sirisena has given the best portfolios in the government to members of the SLFP and his loyalists in the UNP such as Arjuna Ranatunga and Rajitha Senaratne; yet he has not been able to win the support of the vast majority of the SLFP rank and file. Sirisena is already the Head of State and Head of Government and his loyalists hold the best ministries in the government. If he has not been able to win over the SLFP rank and file with that, it is unlikely that he will make much headway by sacking Ranil Wickremesinghe and appointing someone else in his place. Besides, there is a groundswell of anti-government feeling in the country, and rearranging heads in the government will not be a solution for that problem. The most basic fact is that president Sirisena is not seen as a leader and removing Ranil Wickremesinghe is not going to suddenly invest him with the mantle of leadership.

In any event, the rearranging of heads in the cabinet is not going to help the government to overcome the problem of the PC election that will be upon them around October this year. The only feasible solution for that would be to introduce and new Constitution or at least the 20th Amendment reforming the electoral system before the end of the third quarter of this year.