Election Commission cannot usurp Presidents powers: Sri Lanka’s President must declare new polls date before 2nd June
Posted on May 4th, 2020
The recent article by Dr. Nihal Jayawickrema reconfirms the doubts many have that the Election Commission was up to mischief and committing a series of blunders. The situation requires the President and his legal advisors to promptly mitigate the crisis without allowing the President’s 2nd March proclamation to fall null & void by 2nd June whereby the Old Parliament would continue to exist. The Election Commission has no constitutional provision to declare 20 June as an Island wide election date. A constitutional crisis has not arisen; it has been created by the Election Commission.
NO ONE other than the President is empowered by Constitution to declare elections in Sri Lanka. It is a task that the President cannot even delegate to another.
Did President follow Article 70(5) – YES
The President issued a proclamation dissolving Parliament (2 Mar), fixing a date for elections (25Apr), setting nomination period (12-19Mar) and declared a date to summon new parliament not later than 3months from proclamation date (14May).
3 months from date of proclamation falls on 2nd June. The President is required to by constitution ensure a new Parliament is convened by 2nd June. If a new Parliament does not convene by 2nd June the President’s 2nd March proclamation falls null & void & the Old Parliament continues to exist. The President will then have to again dissolve Parliament and call for fresh elections. Without allowing this situation to arise, the President can declare a fresh election date as per Interpretation Ordinance.
A New Parliament must convene by LATEST 2nd June
The Constitution also has a restriction that Sri Lanka cannot function without a Parliament for 3 months. When the President by proclamation dissolved the Old Parliament on 2nd March and fixed date for elections and a new date for convening the new Parliament, it meant that by 2nd June LATEST the new Parliament had to convene.
In other words, no sooner the dates were announced, the task of the Election Commission was simply to conduct the elections.
Blunders of the Election Commission
Nowhere in the Parliamentary Elections Act 1981 does it give the Elections Commission to declare elections
Nowhere does it give the Election Commission to cancel the President’s proclamation which he did on 19 March.
24/3 Parliamentary Act does not give EC mandate to cancel an island wide election – he can only cancel an electoral district & when doing so he must give a fresh date for poll in that electoral district
Election Commission fumbled with dates – 19 March after cancelling entire election (which EC cannot do) he did not give a fresh date, but said he would give a date on 26th March, then EC issues a gazette that a date 14 days after 30 April would be given (which EC didn’t do),
On 20 April the EC declared elections for 20 June. In so doing, EC has usurped the powers vested in the President not vested in the Election Commission. Is 20 June election date, legally questionable?
The Election Commission was well aware that a new Parliament had to convene by 2nd Knowing this, why did the Election Commission declare 20 June as election date?
The 31st March letter to President, confirms the EC knew very well that Parliament had to convene by 1st June when he said elections could be held on 27 to 28 May. Question is why didn’t he plan to hold elections and instead write a letter again to the President the next day asking the President to seek advice of the Supreme Court?
With the Election Commission committing a blunder, what is the recourse action that the President can take?
As per Interpretation Ordinance, the President can amend, vary, rescind, revoke the Proclamation issued by him (Dr Nihal Jayawickrema)
This means the President is within his powers to before 2nd June declare a fresh date/dates for election and the Election Commission is bound to hold a free and fair election on the date/dates declared by the President.
According to Dr Nihal Jayawickrema the Election Commission has assumed upon itself the powers vested to the President via Constitution as well as amended Article 70(5) which only confers powers to the President and not to the Election Commission or to anyone else.
According to Dr Nihal Jayawickrema, the Elections Commission has only a limited power under 24(3) to change only the date of an election in an electoral district not the entire Island.
There was no ‘unforeseen emergency situation’ on 19th March that warranted the Election Commission to indefinitely postpone elections in an electoral district or presume he could cancel the island wide election declared by the President for 25 April.
This means Election Commission cannot use 24(3) and cancel island wide election date declared by the President and arbitrarily issue a date for election to the whole country. The Elections Commission simply does not have powers to declare elections for 20 June.
If Election Commission has usurped constitutional powers vested in ONLY the President, by declaring 20 June as election date for the whole island what is the legal implication and validity of this election?
Will this 20 June election result be constitutionally valid?
As per constitution when the President, dissolves Parliament and sets an election date and also declares when the new Parliament will reconvene, it means that within the 3-month window, elections must take place and the latest date for the new Parliament to convene is 2nd June.
If a New Parliament is not convened by 2nd June the proclamation of 2nd March by the President will have no effect in law.
This means if an election is not held and a new Parliament is not convened before 2nd June, the Old Parliament will remain in force and will not be considered dissolved.
Has the Election Commission purposely put the Country & the President in difficulty by its announcement of elections for 20 June instead of conducting elections as planned for 25 April or even holding elections 14 days after 30 April or even holding elections on 27 or 28 May which would still have given time for Parliament to convene by 2nd June?
The President must now take over as the Election Commission is not mandated to declare island wide election and the 20 Jun election would be constitutionally invalid, giving opportunity for many to petition the Court.
If Only the President is empowered to declare elections – then the President must set a new date/dates for Election and command the Election Commission to hold the election as he is bound by mandate to do.
Shenali D Waduge
May 4th, 2020 at 10:23 am
Shenali, I have read some legal opinions of Dr.Jayawickrama on some other Constitutional issues put forward by a Kautilya in the email Forum. I did not agree with any of them. If your arguments are based on this same Dr. Jayawickrama ‘s opinions about the postponement of the date of election by the Election Commissioner, I disagree with his opinion. The President dissolved the Parliament and fixed the date of election for the 2nd June;2020, but due to unforseen circumstances holding the elections on the date declared by the President has become impossible. And the health authorities unfortunately has an important role to play in deciding when people can safely gather for public purposes. And the 20th June date fixed by the election Commissioner under the Law for holding elections has not been cleared by the health authorities and they informed that they are still unable to fix a safe date even for de confinement of people under quarantine for Covid 19.
The right to fix date for elections is for the Election Commissioner to decide. That is no userping the power of the President. The President has done what the Constitution has authorised him to do do- dissolve the Parliament and fix a date for the election. But the rest lies with the Elections Commissioner. It is now for him to fix a suitable date to hold the General Election. The Nominations that have been accepted remain legally accepted for an election to be held whenever the election commissioner on the advice of the health authorities decides on a dtae for the elections.
May 5th, 2020 at 6:08 am
It was crystal clear that the election couldn’t be held on April 25th as gazetted by the president due to COVID 19 situation in the country. That is why the election commission sought advice from the president. But without working together cooperatively with the election commission, president passed the ball to election commission and washed his hands. Even the PM put the entire responsibility to the election commission and washed his hands. Is this the way the leaders of a country should work with the government agencies?