By C.A.Chandraprema Courtesy The Island

July 20, 2019, 7:28 pm 

Mahinda Deshapriya

One of the matters under discussion at this point in time is whether the long delayed Provincial Council elections should be held before the presidential poll this year. This debate is driven largely by one man – the Chairman of the Elections Commission Mahinda Deshapriya, who has said that he will resign from the Chairmanship of the Commission unless the PC elections are held before the Presidential election. Everybody else in the country, the politicians, the general public and even the provincial councilors who have lost their positions as elected representatives of the people, appear to have forgotten about the provincial councils altogether.

Even the northern Tamil lobby on whose behalf the provincial councils system was created as a consolation prize that stops short of a separate state, have not been vocally demanding that the delayed PC elections be held.  The Eastern PC ceased to exist on 30 September 2017, nearly two years ago. The Northern PC ceased to exist on 25 September 2018, nearly one year ago and there has been no demand for elections to be held either from the Tamil general public or even the politicians and political parties in that part of the country. One gets the feeling that even if the entire provincial councils system is allowed to die a natural death, there will be no outcry from the north and east asking for the PCs to be reestablished.

Be that as it may, we have to consider the question whether the PC elections can in fact be held before the next Presidential poll. According to Article 31(3) of the Constitution, the poll for the election of the President has to be taken not less than one month and not more than two months before the expiration of the term of office of the President in office. Since President Maithipala Sirisena was sworn in on the 9th of January 2015, under the provisions of Article 31(3), the next presidential poll will have to be held before the 9th December 2019. To see whether there is still time for the PC elections to be held, we have to calculate backwards from the 9th December date.

If President Sirisena desires to call for a snap presidential poll in the coming several weeks before the full expiry of his term of office, then under Article 31(3A) it is the President himself who will have to by Proclamation, declare his intention of appealing to the People for a mandate to hold office, by election, for a further term. Once such a declaration is made, the Commissioner of Elections will take over from that point onwards. If a declaration calling an early election is not made and the President remains in office till the end, under the provisions of Articles 31(3) and 31(5) of the Constitution read together with Section 2(1) of the Presidential Elections Act No: 15 of 1981, the Elections Commissioner is required to start the presidential election process by issuing a gazette notification fixing the dates for nominations and the poll.

Tight, but not impossible

Assuming that there is no snap presidential election called with the intention of trying to outmanoeuvre potential opponents, then the earliest date on which the Elections Commission can issue the gazette notification fixing the dates for nominations will be the 9th September 2019. The latest date on which the Elections Commission can issue that gazette notification will be 23 October 2019. What Section 2(1) of the Presidential Elections Act No:15 of 1981 says on this matter is that where the Commissioner of Elections is required by the Constitution to conduct the election of the President, he shall by Order published in the Gazette (a) fix the date of nomination of candidates being a date not less than sixteen days and not more than one month from the date of publication of such Order, and (b) fix the date on which the poll shall be taken, being a date not less than one month and not more than two months from the date of nominations.

Hence the Elections Commission will call for nominations for the presidential election on a date between the 9th September and the 23rd October. The question whether the provincial council elections can be held before the next presidential elections are called depends on how long the PC elections process will take. Under the provisions of Article 154E of the Constitution, a Provincial Council stands automatically dissolved five years from the date of its first meeting. As of now, eight PCs have stood dissolved under this provision but no election has been held. Only the Uva Province still has a functioning provincial council. Be that as it may, when a PC stands dissolved, Section 10 of the Provincial Councils Elections Act No: 2 of 1988 kicks in, and the Elections Commission has to call for an election to that provincial council within one week.

The notice issued by the Elections Commission in this regard has to specify the period during which nomination papers will be accepted by the returning officers of each administrative district in the provinces which will be going in for elections. The nomination period has to commence on the fourteenth day after the notice of elections is issued by the Elections Commission and end on the twenty-first day after the issuance of that notice. Thereafter the returning officers of the districts have to fix the date for the poll being a date not less than five weeks or more than eight weeks from the date of publication of the notice. What this means is that the earliest that elections to the PCs can be held is six weeks after the dissolution of a Council and the latest is nearly nine weeks. Going by this, it is possible that even if the provincial council elections are declared at the end of August this year, there will still be enough time to hold both the PC elections and the Presidential elections this year.   

It will certainly be a tight run, but it will not be impossible. Back in 2014, the Uva PC election was held on 20 September 2014 and the Presidential election was declared on 20 November 2014 just two months later. There is no need to have a gap between the conclusion of one election and the declaring of another. Elections can be held back to back if necessary. At the present moment, what the Chairman of the Elections Commission seems to have in mind are back-to-back PC and presidential elections. If this actually takes place we may experience the shortest gap ever between two elections in this country.

Why the PC elections were delayed

The reason why the provincial council elections could not be held when due was because the government hurriedly changed the provincial councils elections system in September 2017, just a day or two before the Sabaragamuwa, North Central and Eastern provincial councils were to stand dissolved. The immediate purpose behind this exercise was to put off the elections. The method by 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.

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. 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 was assembled, that was not the end of the story. Some of the smaller political parties demanded that the proportion of candidates elected on the basis of the constituencies and proportional representation be changed from the stipulated ratio of 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 the government’s headlong scramble to avoid holding the provincial council elections.

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 2018, it was not passed within the stipulated period of one month. Thereafter, there was a long delay of several months during which the whole process was in abeyance. 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 PC elections 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 2018 and no report was submitted by the Review Committee to the President. Thus, there is now no system of elections to elect representatives to the provincial councils.

Apprehensions about EC’s motive

If the PC elections are to be held, it can only be held under the previous system of elections as the new system was never put into place properly. This can be done only if Parliament annuls the PC elections amending Act of 2017 with a two-thirds majority or by invoking the provisions of Section 6(2) of the Interpretation Ordinance, which states that if an amendment brought to a law is for some reason inoperative, then the previous provisions of the law before amendment continue to apply. Even though getting Parliament to annul the amendment they made to the PS elections law in 2017 by a two-thirds majority, will be a complicated matter, invoking Section 6(2) of the Interpretation Ordinance is less complicated.

There are so many ways in which Section 6(2) of the Interpretation Ordinance could have been invoked. Firstly, the Elections Commission could have simply made a decision that since the PC elections amending law was inoperative that they were going to act on the basis of the provisions in the Interpretation Ordinance and proceeded to call for nominations for the provinces that had no Councils and told anyone who was against that decision to go to courts against the Elections Commission. In the alternative someone could have filed an FR case in the Supreme Court on the grounds that his rights have been violated due to the non-holding of PC elections. In the 1998 case of Karunatilleke vs the Elections Commissioner, Justice Mark Fernando said that the Constitution presumes that the country would have functioning provincial councils.

Another way would have been for the President to make an inquiry from the Supreme Court under Article 129 of the Constitution, as to whether the amendment made to the PC elections law in 2017 was operational or not. Even though the opinions given by the SC to inquiries made under Article 129 are non-binding, that would have provided the Elections Commission with the cover to proceed with the PC elections. Justice Fernando made it clear that the responsibility of the Elections Commission was to see that elections were held and not to play ball with the politicians in postponing elections. Going by that, what the Elections Commission should have done was to invoke the Interpretation Ordinance on their own, start the process of holding elections and tell whoever disagrees to go to court and obtain a stay order.

The question that begs an answer today is why the Elections Commission has wait for so long to press for the PC elections? Whatever they do now to have the PC elections held could have been done much earlier and the delay of the elections prevented.

One member of the Elections Commission even petitioned the supreme court against the dissolution of Parliament and the calling of a general election in November last year. Though a member of the elections has petitioned the SC against the holding of an election, they have never petitioned the SC to have a delayed election held.

Now Rip Van Winkle style the Chairman of the Elections Commission seems to have woken up from a two-year slumber and is demanding that the long delayed PC elections be held before the presidential polls to be held this year.

At a presidential election, the vote gets polarized between the two main contenders. However at all other elections the vote gets fragmented among many political parties. If a PC election is held immediately before a presidential election, the vote will get fragmented at the PC elections and when a presidential election is held immediately afterwards, they may be hoping that the fragmentation that pertained at the PC elections will be carried forward to the presidential elections. At the presidential elections, political parties that contest separately at other elections come together to back one candidate. The yahapalanites may be banking on collecting votes by fragmenting at the PC elections and to come together later at the presidential election and that the synergy of that coming together will help them to win the presidential election on the basis of block votes as what happened in January 2015.

This could, of course, backfire if the SLPP sweeps the board as it did at the local government elections last year and the trend set by that carries forward to the Presidential elections. Despite this risk factor, it is better for the yahapalana side to try even a desperate gamble rather than simply give up without a fight. This is a government that has consistently fought shy of facing elections. In August 2017 it introduced changes to the local government elections law 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 mounted, the government made changes to the local government electoral system creating constituencies and then prevaricated further by citing delimitation disputes. The manner in which the local government elections system was changed was also unprecedented. 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. 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.

It has to be admitted that the only reason why we had a local government election in February last 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 reason why the Chairman of the Elections Commission forced the local government elections on the government was probably because of the expectation that the UNP would win by default due to the division of the UPFA vote between the SLPP and the SLFP.

The hope of the Elections Commission seems to be that the political parties that came together in January 2015 and then held together through thick and thin colluding with one another in delaying elections to the local government institutions and the provincial councils and blocking the move to hold a general election, will contest the PC elections separately and then come together for the presidential election uniting behind one common candidate. They also probably hope that the SLPP may not be able to obtain 50% of the votes at a PC election due to the fragmenting of the vote and that this will carry forward into the presidential election as well.