{"id":101524,"date":"2020-04-25T22:45:29","date_gmt":"2020-04-26T04:45:29","guid":{"rendered":"http:\/\/www.lankaweb.com\/news\/items\/?p=101524"},"modified":"2020-04-25T03:09:28","modified_gmt":"2020-04-25T10:09:28","slug":"powers-of-sri-lankas-elections-commission-to-postpone-declare-new-date-for-elections","status":"publish","type":"post","link":"https:\/\/www.lankaweb.com\/news\/items\/2020\/04\/25\/powers-of-sri-lankas-elections-commission-to-postpone-declare-new-date-for-elections\/","title":{"rendered":"Powers of Sri Lanka\u2019s Elections Commission to postpone\/declare new date for elections"},"content":{"rendered":"\n
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Sri\nLanka is facing multiple issues. At a global & local level there is\npandemic health crisis impacting the lives of all. Governance of country has\nfallen into the hands of the President & the Public Sector which is why it\nis important to have elections to enable a fresh government to join in the\neffort. No one really wants a failed & unsupportive government with a track\nrecord of corruptions & in competencies to reconvene & return to\nParliament. The Elections Commission is not helping the issue by some of its\ndubious actions & statements.   <\/p>\n\n\n\n

It\nis true Sri Lanka is facing a pandemic of unknown proportions. We suffered more\nthan 3 decades of human viruses but still conducted elections during the most\nrepressive years of killings. <\/p>\n\n\n\n

Between\n1979 to 2009 Sri Lanka held in:<\/p>\n\n\n\n

5\nPresidential Elections (1982, 1988, 1994, 1999, 2005), <\/p>\n\n\n\n

5\nParliamentary Elections (1989, 1994, 2000, 2001, 2004), <\/p>\n\n\n\n

7\nProvincial Council Elections (1988, 1993, 1994, 1999, 2004, 2008-2009) & <\/p>\n\n\n\n

10\nlocal government elections (1983, 1991 1994, 1997, 1998, 2002, 2003, 2006, 2008,\n2009) <\/p>\n\n\n\n

Elections\nwere held & People voted inspite of JVP & LTTE threatening to kill the\n1st<\/sup> voter. <\/p>\n\n\n\n

On 15 April 2020, South\nKoreans went to polls with 44million eligible voters.<\/strong> The voter turnout was over 66%. The\nhighest turnout was 71% in 1992. <\/p>\n\n\n\n

The\nruling party won 180 of the 300 seats to the National Assembly \u2013 an increase of\n60 seats recording the biggest win by a ruling party since 1987.<\/p>\n\n\n\n

South Korea has over 10,000\ncovid-19 cases and 240 deaths. <\/strong><\/p>\n\n\n\n

US is also due to have elections in November this year. US has so far recorded the highest covid-19 cases \u2013 close to 926,000 and close to 53,000 deaths. <\/p>\n\n\n\n

USA has not indicated even\npostponing elections. <\/strong><\/p>\n\n\n\n

Confusions\n& contradictions of 19a – Election Commission<\/strong><\/p>\n\n\n\n

Sri Lanka Constitution Chapter 7 – Article 41B(6) amendment\nby 19a says only the Election Commission is not answerable to Parliament (all\nother independent Commissions are answerable) <\/p>\n\n\n\n

Sri Lanka Constitution Chapter 9 – Article\n104B (3) states “The\n(Elections) Commission shall be responsible and answerable to Parliament in\naccordance with the provisions of the Standing Orders of Parliament for the\nexercise, performance and discharge of its powers, duties and functions and\nshall forward to Parliament for each calendar year a report of its activities\nfor such year.”<\/p>\n\n\n\n

Is Election Commission responsible to Parliament? Article 41B(6) says\nNO, Article 104B(3) says YES. <\/p>\n\n\n\n

How will the\nSupreme Court answer the question?   <\/strong><\/p>\n\n\n\n

Article 103(1) was amended by 19a \u2013 <\/p>\n\n\n\n

Elections Commission 3 members was\nto be appointed by the President ON RECOMMENDATION of the Constitutional\nCouncil.<\/p>\n\n\n\n

Article 104(1) Quorum for Commission\nrequires all 3-member present<\/p>\n\n\n\n

Article 104(1) a) states, Chairman\npresides all meetings of Commission but in his absence another member can\npreside. Isn\u2019t this contradicting Article 104(1) Quorum requiring all 3 to be\npresent \u2013 if one is not present the meeting is illegal! <\/p>\n\n\n\n

Article 104(2) b) states decisions\nby majority present and voting if equal votes (how is this possible with just 3\nmembers) <\/p>\n\n\n\n

Article 104 (3) says the EC \u2018shall have to act notwithstanding any\nvacancy in the membership of the Commission, and no act or proceeding or\ndecision of the Commission shall be invalid or be deemed to be invalid by\nreason only if such vacancy or any defect in the appointment of a member\u2019. <\/em>Quorum\nrequires all 3 presence, but is contradicted in Article 104(3) which says a\nmeeting without quorum is still legally binding and valid. Mind boggling\nEnglish comprehension!  <\/p>\n\n\n\n

Article 104A (a) and (b) states no\ncourt shall have power or jurisdiction to entertain or hear or decide or call\ninto question on any ground and in any manner any decision, direction or act by\nthe Elections Commission, made or done or purported to have been made or done\nunder the Constitution or under any law relating to the holding of an election\nor conduct of a Referendum in which decisions, directions or acts shall be\nfinal and conclusive. <\/p>\n\n\n\n

No legal suit or prosecution or\nproceeding shall be taken against any member or officer of the Commission for\nany act or thing which in good faith is done or purported to be done by him in\nthe performance of his duties or discharge of his functions under the\nConstitution or under any law relating to the holding of an election or conduct\nof a Referendum. <\/p>\n\n\n\n

Can\nElections Commission be taken to Courts?<\/strong><\/p>\n\n\n\n

Under Article 104 A, Election\nCommission can be taken to court over fundamental rights issues under Article\n126 of the Constitution \u2013 the writ jurisdiction of the Court of Appeal in the\ncase of the Elections Commission will be exercised by Supreme Court and not\nCourt of Appeal with regard to petitions pertaining to conducting of\npresidential elections, referendums or appeals relating to election petitions\npertaining to Parliamentary elections. <\/p>\n\n\n\n

No wonder the architects of 19a are\nfled the country while other architects are fishing in troubled waters they\ncreated! <\/p>\n\n\n\n

Let\nus first look at the timeline of the dissolution of Parliament <\/p>\n\n\n\n

<\/p>\n\n\n\n
02March 2020<\/strong>  <\/strong> <\/td>\n President dissolves Parliament \/ Sets date for\n Polls & Sets date to convene New Parliament\n <\/td><\/tr>
11 March 2020<\/strong> <\/td>\n 1st<\/sup> covid-19 patient confirmed \n <\/td><\/tr>
12March 2020<\/strong> <\/td>\n Acceptance of nominations for General Elections \n <\/td><\/tr>
19March 2020<\/strong> <\/td>\n Nominations Close\n <\/td><\/tr>
19March 2020 <\/strong> <\/td>\n Election Commission calls press conference\n postponing elections without announcing date\n <\/td><\/tr>
20 March 2020<\/strong> <\/td>\n EC gazette notification 2167\/12\n refers to Parliamentary Election Act Section 24 (1) paras (a) and (c) and not (a) to (d)<\/strong>\n <\/td><\/tr>
21 March 2020<\/strong> <\/td>\n EC gazette notification 2167\/19\n states poll cannot take place on 25 April 2020 and the Commission will appoint\n a day after 14 days from 30 April 2020 as the new day of poll.\n <\/td><\/tr>
28 March 2020<\/strong> <\/td>\n 1st<\/sup> covid-19 death \/ 7th<\/sup> covid-19\n death on 8th<\/sup> April\n <\/td><\/tr>
31 March 2020<\/strong> <\/td>\n Elections Commissioner writes to President\n citing polls could be held on 27th<\/sup> or 28th<\/sup> May 2020\n <\/td><\/tr>
01 April 2020<\/strong> <\/td>\n Elections Commissioner writes to President to\n consult Supreme Court on new elections date\n <\/td><\/tr>
08 April 2020<\/strong> <\/td>\n President\u2019s Secretary replies reminding EC that\n it is EC duty to announce fresh poll date and consultative jurisdiction\n (Article 129) does not apply & the President does not wish to interfere\n in duties of the EC while also highlighting shortcomings in EC\u2019s gazette notification\n of 20 March 2020\n <\/td><\/tr>
18 April 2020<\/strong> <\/td>\n Prime Minister Mahinda Rajapakse issues\n statement reminding Elections Commission of its duty to announce new polls\n date\n <\/td><\/tr>
18 April 2020<\/strong> <\/td>\n TNA sends letter to Election Commission not to\n fix new date\n <\/td><\/tr>
20 April 2020<\/strong> <\/td>\n Elections Commission sets 20 June as new polls\n date\n <\/td><\/tr><\/tbody><\/table>\n\n\n\n

2nd<\/sup> March 2020: The President\ndissolved Parliament \/ Declares elections for 25th<\/sup> April & sets\nnew date to convene Parliament as 14 May 2020<\/strong><\/p>\n\n\n\n

However,\n9 days after the President\u2019s declaration the 1st<\/sup> covid-19 patient\nwas confirmed (11th<\/sup> March 2020). But the President did not have\npowers to postpone elections. The mandatory power to re-fix a polling date when\nthe date fixed by the President cannot be held, falls on the Elections\nCommission via Section 24(3) of the Parliamentary Elections Act No. 1 of 1981. Amendment was\nmade on 24 May 1988 to subsection 10. <\/p>\n\n\n\n

Note: The Elections\nCommission has to fix a new date not postpone the poll without fixing a date. <\/strong><\/p>\n\n\n\n

Deaths from covid-19 in Sri Lanka:<\/strong><\/p>\n\n\n\n

1st<\/sup>\ndeath \u2013 28 March \/ 2nd<\/sup> death \u2013 30th<\/sup> March \/ 3rd<\/sup>\n& 4th<\/sup> Deaths \u2013 2nd<\/sup> April \/ 5th<\/sup> death \u2013 4th<\/sup>\nApril \/ 6th<\/sup> death \u2013 7th<\/sup> April \/ 7th<\/sup> death \u2013 8th<\/sup>\nApril (only 140 active cases and 42 recovered)<\/p>\n\n\n\n

12th<\/sup> March 2020: Acceptance of\nnominations for General Elections begin<\/strong><\/p>\n\n\n\n

http:\/\/www.colombopage.com\/archive_20A\/Mar12_1583993645CH.php<\/a><\/p>\n\n\n\n

19th<\/sup> March 2020: Nominations\nclose \/ Election Commissioner delays elections without date<\/strong><\/p>\n\n\n\n

Nominations closed\non 19th<\/sup> March 2020<\/strong>.\nThat very day Election Commission holds press conference and announces elections will not\nbe held on 25th<\/sup> April<\/strong> (date\nannounced by President) citing the covid-19 situation. He says EC will continue\nto receive nominations. <\/p>\n\n\n\n

The Elections Commissioner says the new date will be 14\ndays after<\/strong> the day on which elections was\nset to be held (25th<\/sup> April was the date fixed by the President) He\nstates that the new date would be\nannounced on 26th<\/sup> March<\/strong> after discussions with health\nauthorities.<\/p>\n\n\n\n

http:\/\/www.dailymirror.lk\/breaking_news\/No-General-Elections-on-April-25-EC\/108-185323<\/a><\/p>\n\n\n\n

(Note\nby 19th<\/sup> March no Sri Lankan had died of covid-19)<\/p>\n\n\n\n

31st<\/sup>\nMarch 2020 \u2013 EC writes to President <\/strong><\/p>\n\n\n\n

Stating\nthat the new Parliament should convene at least on 1st<\/sup> April 2020\n& that the latest\ndates on which the polls could be held was 27th<\/sup> or 28th<\/sup> May\n2020<\/strong>.<\/p>\n\n\n\n

1st<\/sup> April 2020 \u2013 EC writes to\nPresident Rajapakse to consult Supreme Court on Holding Elections<\/strong><\/p>\n\n\n\n

The Election Commission states the new Parliament has\nto convene before 2nd<\/sup> June<\/strong> (within 3 months of dissolution of Parliament) and citing the current situation in the country impedes holding of election by end\nMay.<\/strong><\/p>\n\n\n\n

8th<\/sup> April 2020 \u2013\nPresident\u2019s Secretary responds to Election Commission via letter<\/strong><\/p>\n\n\n\n