Sri
Lanka is facing multiple issues. At a global & local level there is
pandemic health crisis impacting the lives of all. Governance of country has
fallen into the hands of the President & the Public Sector which is why it
is important to have elections to enable a fresh government to join in the
effort. No one really wants a failed & unsupportive government with a track
record of corruptions & in competencies to reconvene & return to
Parliament. The Elections Commission is not helping the issue by some of its
dubious actions & statements.
It
is true Sri Lanka is facing a pandemic of unknown proportions. We suffered more
than 3 decades of human viruses but still conducted elections during the most
repressive years of killings.
Between
1979 to 2009 Sri Lanka held in:
5
Presidential Elections (1982, 1988, 1994, 1999, 2005),
5
Parliamentary Elections (1989, 1994, 2000, 2001, 2004),
7
Provincial Council Elections (1988, 1993, 1994, 1999, 2004, 2008-2009) &
10
local government elections (1983, 1991 1994, 1997, 1998, 2002, 2003, 2006, 2008,
2009)
Elections
were held & People voted inspite of JVP & LTTE threatening to kill the
1st voter.
On 15 April 2020, South
Koreans went to polls with 44million eligible voters. The voter turnout was over 66%. The
highest turnout was 71% in 1992.
The
ruling party won 180 of the 300 seats to the National Assembly – an increase of
60 seats recording the biggest win by a ruling party since 1987.
South Korea has over 10,000
covid-19 cases and 240 deaths.
US is also due to have elections in November this year. US has so far recorded the highest covid-19 cases – close to 926,000 and close to 53,000 deaths.
USA has not indicated even
postponing elections.
Confusions
& contradictions of 19a – Election Commission
Sri Lanka Constitution Chapter 7 – Article 41B(6) amendment
by 19a says only the Election Commission is not answerable to Parliament (all
other independent Commissions are answerable)
Sri Lanka Constitution Chapter 9 – Article
104B (3) states “The
(Elections) Commission shall be responsible and answerable to Parliament in
accordance with the provisions of the Standing Orders of Parliament for the
exercise, performance and discharge of its powers, duties and functions and
shall forward to Parliament for each calendar year a report of its activities
for such year.”
Is Election Commission responsible to Parliament? Article 41B(6) says
NO, Article 104B(3) says YES.
How will the
Supreme Court answer the question?
Article 103(1) was amended by 19a –
Elections Commission 3 members was
to be appointed by the President ON RECOMMENDATION of the Constitutional
Council.
Article 104(1) Quorum for Commission
requires all 3-member present
Article 104(1) a) states, Chairman
presides all meetings of Commission but in his absence another member can
preside. Isn’t this contradicting Article 104(1) Quorum requiring all 3 to be
present – if one is not present the meeting is illegal!
Article 104(2) b) states decisions
by majority present and voting if equal votes (how is this possible with just 3
members)
Article 104 (3) says the EC ‘shall have to act notwithstanding any
vacancy in the membership of the Commission, and no act or proceeding or
decision of the Commission shall be invalid or be deemed to be invalid by
reason only if such vacancy or any defect in the appointment of a member’. Quorum
requires all 3 presence, but is contradicted in Article 104(3) which says a
meeting without quorum is still legally binding and valid. Mind boggling
English comprehension!
Article 104A (a) and (b) states no
court shall have power or jurisdiction to entertain or hear or decide or call
into question on any ground and in any manner any decision, direction or act by
the Elections Commission, made or done or purported to have been made or done
under the Constitution or under any law relating to the holding of an election
or conduct of a Referendum in which decisions, directions or acts shall be
final and conclusive.
No legal suit or prosecution or
proceeding shall be taken against any member or officer of the Commission for
any act or thing which in good faith is done or purported to be done by him in
the performance of his duties or discharge of his functions under the
Constitution or under any law relating to the holding of an election or conduct
of a Referendum.
Can
Elections Commission be taken to Courts?
Under Article 104 A, Election
Commission can be taken to court over fundamental rights issues under Article
126 of the Constitution – the writ jurisdiction of the Court of Appeal in the
case of the Elections Commission will be exercised by Supreme Court and not
Court of Appeal with regard to petitions pertaining to conducting of
presidential elections, referendums or appeals relating to election petitions
pertaining to Parliamentary elections.
No wonder the architects of 19a are
fled the country while other architects are fishing in troubled waters they
created!
Let
us first look at the timeline of the dissolution of Parliament
| 02March 2020 |
President dissolves Parliament / Sets date for
Polls & Sets date to convene New Parliament
|
| 11 March 2020 |
1st covid-19 patient confirmed
|
| 12March 2020 |
Acceptance of nominations for General Elections
|
| 19March 2020 |
Nominations Close
|
| 19March 2020 |
Election Commission calls press conference
postponing elections without announcing date
|
| 20 March 2020 |
EC gazette notification 2167/12
refers to Parliamentary Election Act Section 24 (1) paras (a) and (c) and not (a) to (d)
|
| 21 March 2020 |
EC gazette notification 2167/19
states poll cannot take place on 25 April 2020 and the Commission will appoint
a day after 14 days from 30 April 2020 as the new day of poll.
|
| 28 March 2020 |
1st covid-19 death / 7th covid-19
death on 8th April
|
| 31 March 2020 |
Elections Commissioner writes to President
citing polls could be held on 27th or 28th May 2020
|
| 01 April 2020 |
Elections Commissioner writes to President to
consult Supreme Court on new elections date
|
| 08 April 2020 |
President’s Secretary replies reminding EC that
it is EC duty to announce fresh poll date and consultative jurisdiction
(Article 129) does not apply & the President does not wish to interfere
in duties of the EC while also highlighting shortcomings in EC’s gazette notification
of 20 March 2020
|
| 18 April 2020 |
Prime Minister Mahinda Rajapakse issues
statement reminding Elections Commission of its duty to announce new polls
date
|
| 18 April 2020 |
TNA sends letter to Election Commission not to
fix new date
|
| 20 April 2020 |
Elections Commission sets 20 June as new polls
date
|
2nd March 2020: The President
dissolved Parliament / Declares elections for 25th April & sets
new date to convene Parliament as 14 May 2020
However,
9 days after the President’s declaration the 1st covid-19 patient
was confirmed (11th March 2020). But the President did not have
powers to postpone elections. The mandatory power to re-fix a polling date when
the date fixed by the President cannot be held, falls on the Elections
Commission via Section 24(3) of the Parliamentary Elections Act No. 1 of 1981. Amendment was
made on 24 May 1988 to subsection 10.
Note: The Elections
Commission has to fix a new date not postpone the poll without fixing a date.
Deaths from covid-19 in Sri Lanka:
1st
death – 28 March / 2nd death – 30th March / 3rd
& 4th Deaths – 2nd April / 5th death – 4th
April / 6th death – 7th April / 7th death – 8th
April (only 140 active cases and 42 recovered)
12th March 2020: Acceptance of
nominations for General Elections begin
http://www.colombopage.com/archive_20A/Mar12_1583993645CH.php
19th March 2020: Nominations
close / Election Commissioner delays elections without date
Nominations closed
on 19th March 2020.
That very day Election Commission holds press conference and announces elections will not
be held on 25th April (date
announced by President) citing the covid-19 situation. He says EC will continue
to receive nominations.
The Elections Commissioner says the new date will be 14
days after the day on which elections was
set to be held (25th April was the date fixed by the President) He
states that the new date would be
announced on 26th March after discussions with health
authorities.
http://www.dailymirror.lk/breaking_news/No-General-Elections-on-April-25-EC/108-185323
(Note
by 19th March no Sri Lankan had died of covid-19)
31st
March 2020 – EC writes to President
Stating
that the new Parliament should convene at least on 1st April 2020
& that the latest
dates on which the polls could be held was 27th or 28th May
2020.
1st April 2020 – EC writes to
President Rajapakse to consult Supreme Court on Holding Elections
The Election Commission states the new Parliament has
to convene before 2nd June (within 3 months of dissolution of Parliament) and citing the current situation in the country impedes holding of election by end
May.
8th April 2020 –
President’s Secretary responds to Election Commission via letter
- Acknowledges letters received
from Election Commission dated 31st March and 1st April
- Reminds that with proclamation of gazette 2165/8 (2 March)
Parliament was dissolved and new Parliament was to meet on 14th May
and date of elections fixed for 25 April
- Consent to contest was given in letters by Political Parties and
independent groups, deposits made and nominations commenced – this signaled acceptance
of dissolution, acceptance of date for polls, and submission of nominations to
Returning Officers.
- The Secretary highlights that the Election Commission
published a gazette notification 2167/12 on 20 March 2020 referring only to sub paragraphs (a) and (c) of Section 24 (1) Parliamentary
Elections Act –
but OMITTED including sub paragraphs (a) to (d) of Section 24 (1). (In publishing only (a) and (c) the Election Commission drew
attention to only poll taking place between 7a.m. and 4p.m. in each electoral
district and electoral districts the election is contested
- Gazette 2167/19 on 21 March 2020
by Election Commission states poll cannot take place on 25 April 2020 and the Commission will
appoint a day after 14 days from 30 April 2020 as the new day of poll.
- The President’s Secretary points out that as per Section 24(3) the
Commission has to specify another day for polls in the Gazette issued under
Section 24(3) if the poll cannot take place on 25 April 2020.
- The President’s Secretary states that the new date has to be 14 days after the date of gazette publication
under Section 24(3) of the Parliamentary Elections Act
- The President’s Secretary
reminds the Election Commission that it
is NOT the President who is responsible for fixing new poll date but it is the
role of the Elections Commission and that the President does not wish to interfere in duties of the Election
Commission.
- The President’s Secretary also points out that as per Section 24
(3) of the Parliamentary Elections Act, though the time period given for postponement
is not less than 14 days, polls could be held even on 15th day.
- The President’s Secretary also reminds that it is the right of the
people to exercise their franchise right to vote.
- The President’s Secretary ends letter by stating that Article 129
(Consultative Jurisdiction) in referring issue to Supreme Court by President
does not arise as the duties to fix new polls date lies with the Elections
Commission and not with the President.
On 18th April the PM issues a
statement conveying following:
- Compared
the pandemic impact on strong economies of West against economic ruin following
yahapalana rule from 2015 to 2019 with debt burden increasing by 71%
- Informed
that Parliament functioned without a majority since November 2019 Presidential
elections and without the support of the Opposition even for vote on account
- Informs
that the saving grace was the financial powers vested in the President under
Article 150(3) which has helped to deal with the pandemic since 11 March 2020
& discovery of 1st covid-19 patient
- Reminds
of the magnitude of the crisis is one Sri Lanka has never experienced and
impacting the lives of all
- The PM
highlighted how the Opposition had tried to scuttle the situation – encouraging
protests against quarantine process, undermining Govt services claiming the
President did not have powers to allocate funds for services after dissolution
of Parliament, and present demand to rescind Parliament & reconvene it as
the new Parliament has to meet before 2nd June.
- The PM
reminded how yahapalana delayed local govt elections for nearly 3 years by even
moving courts.
- The PM
says that ‘Sri Lanka is also the only democratic country in the world where
political parties petitioned the Supreme Court to get the declaration of a
parliamentary election annulled”
- The PM also cites that 11 of the 25
districts has no coronavirus patients.
(The situation may have changed slightly since this statement)
- The PM
highlights the mandatory obligation that falls on the Election Commission to
fix a fresh date when the date decided by the President to hold the polls
cannot be held (Section 24(3) of the Parliamentary Elections Act No. 1 of 1981)
18 April 2020: TNA writes to Election
Commission not to fix new polls date until assurance by local and global health experts that it is safe
to do so”
https://www.tamilguardian.com/sites/default/files/File/TNA/TNA%20-%20EC%20letter.pdf
20 April 2020: Election Commission gazettes
notification 2172/3 notifying Parliamentary Elections to be held on 20th
June 2020.
The
notification cites Section 24(3) of Parliamentary Elections Act 1 of 1981. As
per this together with the amended Section 10 requirement to set a date not
less than 5 weeks and not more than 7 weeks from closing date of nominations,
the Elections
Commission cannot set a date beyond 14th May.
However,
Elections Commissioner has put 20th June 2020. WHY and does he have
powers to do so? If not, he must revise this date to comply with the very
sections he quotes in gazette.
Questioning the Actions of the Elections
Commission/Commissioner
- Why
did EC not declare a fresh date for polls when he convened a press conference
on 19th March to cancel the elections scheduled for 25th April
declared by the President on 2nd March 2020?
- Why
did EC overlook section 10 when citing Section 24(3) of the Parliamentary
Elections Act. (i) a day not less than 5 weeks and not
more than 7 weeks from the closing day of the nomination period. Since nominations closed on 19 March,
the Elections Commission had to set a new date not less than 5 weeks
and not more than 7 weeks from 19th March 2020 (which would
be 27th April or 14th May)
- Why did EC
via gazette cite Section 24(3) applicable to ‘ANY DISTRICT’ in which a poll
cannot be held as Section 24(3) does
not imply ALL DISTRICTS.
- Why does the Elections Commission need to
write to the President of Sri Lanka asking him to consult the Supreme Court
when the EC is well aware that it is empowered to declare a fresh date for
elections?
- Why does the Elections Commission first write
to the President on 31st March informing him the latest date for
elections is 27th or 28th May and then write again on 1st
April claiming that Parliament has to convene before 2nd June and
then claim the current situation in the country impedes holding of elections in
end of May?
- If by letter to President on 31 March 2020, the EC informs that the
latest date for elections can be 27th or 28th May, why
did EC declare 20th June as election date?
- As per letter by President’s Secretary in
response to 2 letters sent by the EC – what explanation can EC give for issuing
gazette 2167/12 (20Mar) citing only Section 24(1) sub paras (a) and (c) but
omitting sub paras (a) to (d)
- The PM also reminds the EC of the powers
vested in the EC to declare a fresh date for polls if the date declared by the
President is cancelled. But there were certain rules to follow in declaring a
fresh date. However, the EC declaring 20th June violates those
rules. EC must apologize and correct the error.
- The Election Commission had to declare a date
14 days from 25th April or 14 days from 30th April (as
per EC gazette 2167/19 on 21 Mar claiming EC would appoint a date 14 days from
20th April) – but EC declares 20th June which is well
beyond the 14 days he is mandated to follow.
Bottom-line
is, the Election Commission had 3 options to fix a new poll date governed by
these rules
- A date
no less than 5 weeks and not more than 7 weeks from nominations closing date –
meant he could have declared elections on 14th May
- 14
days following the cancellation of President’s declared election date 25th
April
- 14
days after 30th April as given in EC gazette notification.
Without
following above – why did EC announce 20th June as election date has
to be officially responded by the Election Commission & Election Chairman.
The
Elections Commission does have an option via Section 24 (3) under emergency
situation which allows Elections Commissioner to consider a staggered election
over a number of days dividing electoral districts into high risk/low risk as
some districts have no cases of covid-19.
Section 24(3) States: Where due to
any emergency or unforeseen circumstances the poll for the election in any electoral district cannot be
taken on the day specified in the notice relating to the election published
under subsection (1), the Commissioner may, by Order published in the Gazette,
appoint another day for the taking of such poll, and such other day shall not
be earlier than the fourteenth day after the publication of the Order in the
Gazette”.
Essentially this does not imply
island-wide therefore option of a staggered election is possible)
What Elections Commissioner cannot
do is DENY voters to exercise their franchise. If South Korea with higher cases
of covid-19 including 240 deaths went to polls with over 66% turnout and
completed an election, there is no reason why Sri Lanka’s Elections Commission
cannot hold elections under the same circumstances.
Shenali
D Waduge
