By Sugeeswara Senadhira Courtesy Ceylon Today

The last possible step to safeguard the power already devolved to provinces was taken by President Maithripala Sirisena, by seeking the opinion of the Supreme Court, to ascertain if the Provincial Council Elections could be held on the old electoral system, as the Delimitation Report has been deadlocked in Parliament. As the time was running out, the President sought a determination from the Supreme Court to conduct early Provincial Council Polls.

The President wanted to ascertain from the Supreme Court whether he could conduct PC Polls after gazetting the Delimitation Report, or under the previous proportional representation (PR) system. The Delimitation Committee Report has already been rejected unanimously by Parliament. Consequently, a new mixed electoral system of first-past-the-post and PR are now deadlocked, as the Parliament failed to take the required steps towards enactment of an Act.

The basic rule of any electoral democracy is that all elections must take place at the time prescribed by law, and that delay in any election is a violation of the sovereignty of the people and the Constitution. The five-year terms of eight of the nine provinces have lapsed, and they are under the Governors’ administration. The Uva Provincial Council too will end its term in two months time.

13th Amendment

The 13th Amendment to the Constitution was enacted and Provincial Councils were established to devolve power as a follow up action to fulfil the promises given to India under the Indo-Sri Lanka Agreement (ISLA) of 29 July 1987. The Agreement was reached as a solution to the demands of the Tamil community in the North and East.

It is indeed ironical, that the Tamil Parliamentarians have collaborated with the Government to ensure that all attempts to hold Provincial Council Elections were blocked. 

Tamil National Alliance (TNA) Parliamentarian M.A. Sumanthiran, who was one of the intervening petitioners, said in his submission to Supreme Court that if there has been a stalemate, it is the duty of Parliament and Parliament alone to correct it. “A consensus was reached by all party leaders when I drafted this amendment. I gave it to the Government, but the Government did nothing. Now, I have taken steps to introduce it as a Private Member’s Bill. That’s the background. Since there was consensus by all parties to revert to the old system to have the election, we can talk about a better system and election reforms,” Sumanthiran said.

He claimed that, the current conundrum, according to him, needs a legislative enactment, and is a matter well within the Legislature. It requires a legislative amendment. It cannot stretch the Interpretation Ordinance to this. The law has become operative, and under the operative law, various measures have been taken.

Sumanthiran and other TNA Parliamentarians failed to ensure early enactment of the Delimitation Report in Parliament. They continued to support the United National Front (UNF) Government and safeguarded it at every vote in Parliament. Many Tamil analysts have stated that the TNA Parliamentarians have betrayed the Tamil interest, by supporting the Government that did not have any desire to hold early PC Elections.

President Sirisena appointed the Delimitation Committee under Section 4 of the Provincial Councils Elections (Amendment) Act, No. 17 of 2017. The Committee duly submitted the Delimitation Report to Minister Faiszer Musthapha. The Minister tabled the report in Parliament, seeking approval by not less than two-thirds of the whole number of Members of Parliament voting in its favour. However, it was defeated, with Minister Musthapha also voting against his own Bill.

The next requirement was to appoint a Review Committee of five persons, headed by the Prime Minister. This Review Committee could cause any alteration to be made to the names, numbers, and boundaries of any electorate. The Review Committee was to fulfil its responsibilities within two months of the Minister having referred the Delimitation Report for its consideration and, thereafter, submit its report to the President. Upon receipt of the report of the Review Committee, the President was to, by Proclamation, publish the new number of electorates, the boundaries, names assigned to each electorate so created on the report submitted by the Review Committee. This Review Committee, headed by the Prime Minister, failed to submit its report to the President.

Parliament to blame 

This clearly shows that the fault for postponement of PC Elections lies with Parliament. The President, by seeking a Supreme Court decision, took the last possible step available to him to hold the PC Elections. The President was helpless to take any action on this, without an interpretation of the Constitution by the Supreme Court.

Although the main parties, SLPP, SLFP and UNP did not openly oppose holding the long-delayed Provincial Council Elections before the Presidential Poll this year, they worry whether the time was sufficient for selection of PC candidates and campaigning. Surprisingly, the politicians, including the Provincial Councillors who have lost their positions as elected representatives of the people, did not make a heavy demand for early PC Elections. 

Even the Northern Tamil political parties, on whose behalf the provincial councils system was created under the 13th Amendment, 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.

This leads to an opinion 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 re-established. However, TNA Leader R. Sampanthan said that the need of the hour is a new Constitution and not a Presidential Election. The experienced former Opposition Leader should have known that the establishing of a new Constitution is not possible at the final year of the Executive President and Parliament. That should be taken up after the PC and Presidential Elections. The TNA’s decision to back the Government seems to be counterproductive if the provincial council system dies a natural death. In that eventuality, the UNF Government and Tamil MPs should share the blame for betraying the trust bestowed on them by Tamil people.