{"id":101908,"date":"2020-05-03T22:00:42","date_gmt":"2020-05-04T05:00:42","guid":{"rendered":"http:\/\/www.lankaweb.com\/news\/items\/?p=101908"},"modified":"2020-05-06T16:16:56","modified_gmt":"2020-05-06T23:16:56","slug":"has-sri-lankas-election-commission-blundered","status":"publish","type":"post","link":"https:\/\/www.lankaweb.com\/news\/items\/2020\/05\/03\/has-sri-lankas-election-commission-blundered\/","title":{"rendered":"Has Sri Lanka\u2019s Election Commission blundered"},"content":{"rendered":"\n<p><\/p>\n\n\n\n<div class=\"wp-block-image\"><figure class=\"aligncenter\"><img loading=\"lazy\" decoding=\"async\" width=\"318\" height=\"159\" src=\"https:\/\/www.lankaweb.com\/news\/items\/wp-content\/uploads\/2020\/05\/images-125.jpeg\" alt=\"\" class=\"wp-image-101909\" srcset=\"https:\/\/www.lankaweb.com\/news\/items\/wp-content\/uploads\/2020\/05\/images-125.jpeg 318w, https:\/\/www.lankaweb.com\/news\/items\/wp-content\/uploads\/2020\/05\/images-125-300x150.jpeg 300w\" sizes=\"auto, (max-width: 318px) 100vw, 318px\" \/><\/figure><\/div>\n\n\n\n<p>The\nPresident in dissolving Parliament on 2<sup>nd<\/sup> March &amp; setting a new\ndate for polls followed all the rules. Having set a date it was left to the\nElection Commission to conduct the polls. Yes, the country was facing a global\npandemic. But the country also weathered 30 years of terrorism and continued to\nhold democratic elections whatever the odds. All of the constitutional hiccups\ncould have been amicably addressed without having to be bickering over clauses\nand dates if political parties, politicians and even members of independent\ncommissions were mature enough to arrive at a consensus. However, their actions\nshow that none of them are interested in the citizen voters but simply to\nsafeguard their political careers or satisfy those they are aligned to. <\/p>\n\n\n\n<p><strong>Rules followed by the President <\/strong><\/p>\n\n\n\n<ul class=\"wp-block-list\"><li>Gazette notification\ndeclaring Parliament dissolved ONLY AFTER the stipulated 4 \u00bd years as per 19a \u2013\nArticle 70(1)<\/li><li>Gazette\nnotification gave date for Islandwide elections (25 April) <\/li><li>Gazette\nnotification gave nomination period (Mar 12 t o 19) <\/li><li>Gazette\nnotification gave date for convening of New Parliament <\/li><\/ul>\n\n\n\n<p><strong>All steps that the constitution\nrequired the President to abide by was done.<\/strong><\/p>\n\n\n\n<p>The\nnext part was in the hands of the Election Commission<\/p>\n\n\n\n<p><strong>12 March<\/strong> \u2013 The Election Commission began accepting\nnominations<\/p>\n\n\n\n<p><strong>19 March<\/strong> &#8211; The Election Commission closed accepting nominations\n<\/p>\n\n\n\n<p><strong>19 March<\/strong> \u2013 The Election Commission postpones 25 April\nelections without announcing a date but says a new date will be announced on 26<sup>th<\/sup>\nMarch after consultations with health services<\/p>\n\n\n\n<p><strong>20 March<\/strong> \u2013 The EC issues gazette 2167\/12 Parliamentary\nElections Act Section 24(1) paras a) and c) but not a) to d)<\/p>\n\n\n\n<p><strong>21 March<\/strong> \u2013 The EC issues gazette 2167\/19 postponing 25<sup>th<\/sup>\nApril elections &amp; declares a date 14 days after 30<sup>th<\/sup> April will\nbe given as new date for elections.<\/p>\n\n\n\n<p><strong>31 March<\/strong> \u2013 The EC writes to President stating that new\nParliament should convene on 1<sup>st<\/sup> June citing elections could be held\non 27 or 28 May 2020 <\/p>\n\n\n\n<p><strong>1 April<\/strong> \u2013 The EC writes to President to consult Supreme\nCourt on new elections date <\/p>\n\n\n\n<p><strong>20 April<\/strong> \u2013 Election Commission gazettes notification 2172\/3\nnotifying Parliamentary Elections to be held on 20th June 2020<\/p>\n\n\n\n<p><strong>Where did the Election Commission err?<\/strong><\/p>\n\n\n\n<ul class=\"wp-block-list\"><li>As per Section\n24(3) of Parliamentary Elections Act of 1981 subsection 10 \u2013 does the EC have a\nmandate to cancel an island-wide election or only to cancel election in an\nelectoral district? <strong>Did the EC have the mandate to cancel island wide election set by the\nPresident for 25 April?<\/strong> <\/li><\/ul>\n\n\n\n<ul class=\"wp-block-list\"><li>If EC can only\ncancel an electoral district, EC is by constitution also bound to declare a new\ndate 14 days from the date he cancelled (19 Mar) as the new date for elections\nin that electoral district. Why did the EC not do this on 19 Mar? EC did not\nspecify any date when he cancelled the 25<sup>th<\/sup> April island wide\nelection declared by the President<\/li><\/ul>\n\n\n\n<ul class=\"wp-block-list\"><li>If elections had\nto be held 14 days after the postponement date as per 24\/3 of Parliamentary\nElections Act \u2013 why didn\u2019t EC give a fresh date when he postponed the elections\non 19<sup>th<\/sup> March? <a href=\"http:\/\/www.dailymirror.lk\/breaking_news\/No-General-Elections-on-April-25-EC\/108-185323\">http:\/\/www.dailymirror.lk\/breaking_news\/No-General-Elections-on-April-25-EC\/108-185323<\/a>\n<\/li><\/ul>\n\n\n\n<ul class=\"wp-block-list\"><li>On 19<sup>th<\/sup>\nMarch the EC at the press conference cancelling 25<sup>th<\/sup> April elections\nsays he will give a fresh date for polls on 26<sup>th<\/sup> March but the EC didn\u2019t\nand did not give a reason why the EC was not giving a fresh date on 26<sup>th<\/sup>\nMarch. <a href=\"http:\/\/www.asiantribune.com\/node\/93497\">http:\/\/www.asiantribune.com\/node\/93497<\/a>\n<\/li><\/ul>\n\n\n\n<ul class=\"wp-block-list\"><li>Even by 21<sup>st<\/sup>\nMarch, the EC in its gazette does not give a date but says a date will be given\n14 days after 30 April. The EC did not declare a date. However, again the question\nof \u2018can EC give an island-wide date for an election arises\u2019. <\/li><\/ul>\n\n\n\n<ul class=\"wp-block-list\"><li>Why did EC write\nto the President on 31 March claiming that Parliament has to convene on 1<sup>st<\/sup>\nJune and that elections could be held on 27 or 28 May but the very next day\nwrite another letter to the President asking him to seek advice of the Supreme\nCourt? <a href=\"https:\/\/www.newsfirst.lk\/2020\/04\/02\/ec-wants-president-to-seek-supreme-court-determination-on-general-election\/\">&nbsp;<\/a>&nbsp;<\/li><\/ul>\n\n\n\n<ul class=\"wp-block-list\"><li>If EC has\nmandate to declare island wide election, why should Section 10 of the\nParliamentary Elections Act stipulate the EC with maximum 7 weeks from closing\ndate of nominations to declare a new date?<\/li><\/ul>\n\n\n\n<ul class=\"wp-block-list\"><li>As per section\n10 of Parliamentary Elections Act, the EC has to set a date not less than 5\nweeks and not more than 7 weeks from closing date of nominations. If so, can EC\nset 20 June as election date? <\/li><\/ul>\n\n\n\n<ul class=\"wp-block-list\"><li>8 April \u2013\nPresident\u2019s Secretary replying to the EC informs that it is the duty of the EC\nto announce fresh poll date. The Secretary also states that Consultative\nJurisdiction (Article 29) does not apply and the President does not wish to\ninterfere in the duties of the EC. The Secretary also highlights shortcomings\nin EC\u2019s gazette notification of 20 Mar. &nbsp;<\/li><\/ul>\n\n\n\n<ul class=\"wp-block-list\"><li>What is the\nexplanation EC can offer for issuing gazette 2167\/12 on 20 March citing only\nSection 24(1) sub paras (a) and (c) but omitting sub paras (b) and (d) <\/li><\/ul>\n\n\n\n<ul class=\"wp-block-list\"><li>20 April the EC\ngazettes that elections will be held on 20 June but he does not explain how the\nEC arrived at this particular date. <\/li><\/ul>\n\n\n\n<p><strong>The Challenges<\/strong><\/p>\n\n\n\n<ul class=\"wp-block-list\"><li>Parliament\nrequires to convene 3 months from dissolution of Parliament \u2013 the date given by\nthe President was 14 May, if elections were held on 25 April. With elections\nnot held on 25 April and the EC declaring elections for 20 June, the date given\nby the President to convene Parliament cannot be met. The situation that has\narisen is not the fault of the President.<\/li><\/ul>\n\n\n\n<ul class=\"wp-block-list\"><li>The 24\/3 of\nParliamentary Elections Act says \u2018ANY DISTRICT\u2019 this does not IMPLY ALL\nDISTRICTS\u201d so it questions the mandate of the EC to cancel elections in ALL\nDISTRICTS as he did on 19<sup>th<\/sup> March by cancelling 25<sup>th<\/sup> April\nelection date set by HE the President.<\/li><\/ul>\n\n\n\n<ul class=\"wp-block-list\"><li>COVID19 \u2013 11<sup>th<\/sup>\nMarch 1<sup>st<\/sup> Sri Lankan patient confirmed\/ 28 March 1<sup>st<\/sup> death\n&amp; 7<sup>th<\/sup> death on 8<sup>th<\/sup> April. On 19<sup>th<\/sup> March \u2013\nthe day EC postponed elections indefinitely Sri Lanka had no COVID19 deaths and\nonly 53 confirmed cases. By 8<sup>th<\/sup> April Sri Lanka had 7 deaths 140\nactive cases and 42 recovered. The country was not facing a medical emergency. <\/li><\/ul>\n\n\n\n<ul class=\"wp-block-list\"><li>As per gazette\ndated March 2 announcing the dissolution, the new parliament had to meet within\n90 days or before June 2 \u2013 that it is unable to, is not the fault of the\nPresident but the many hiccups by the Elections Commission.<\/li><\/ul>\n\n\n\n<ul class=\"wp-block-list\"><li>Section\n24(3) States: Where due to any emergency or unforeseen circumstances the poll\nfor the election in <strong>any electoral district<\/strong>\ncannot be taken on the day specified in the notice relating to the election\npublished under subsection (1), the Commissioner may, by Order published in the\nGazette, appoint another day for the taking of such poll, and such other day\nshall not be earlier than the fourteenth day after the publication of the Order\nin the Gazette\u201d. This means EC cannot declare island-wide election using\nsection 24\/3 but he can use this provision to carry out a staggered election.<\/li><\/ul>\n\n\n\n<p><strong>Can Sri Lanka have an election?<\/strong><\/p>\n\n\n\n<p>The\nmost unusual scenario is that the ruling party wants an election but the\nOpposition doesn\u2019t and is pulling every trick possible to delay the election.\nThey can only do so till Aug 2020 when the 5-year term automatically becomes\nnull &amp; void. However, with the dissolution of Parliament on 2 March, the\nOld Parliament technically does not exist. Given that Sri Lanka\u2019s COVID19\nsituation is well under control with no ICU patients, no patient in serious\ncondition and the intel services confirming they have identified all community\nclusters and there has been no COVID19 death since 8<sup>th<\/sup> April, with\nthe likelihood that COVID19 is unlikely to disappear any time too soon, we may\nas well conclude the election without further ado. <\/p>\n\n\n\n<p>During\nthe height of terror where both LTTE and JVP threatened to kill anyone going to\nvote, Sri Lanka has held 5 Presidential Elections, 5 Parliamentary Elections, 7\nProvincial Council Elections, 10 Local Government Elections from 1979 to 2009.\nThe COVID19 situation may be somewhat different but Sri Lanka cannot simply not\nhold an election waiting in anticipation for COVID19 to completely finish. <\/p>\n\n\n\n<p>The\n19a has given more headaches for Sri Lanka than any merit. The contradictions\nand confusions abound leaving a can of worms open for controversial judgements\nand interpretations. Amended Article 41B(6) says Election Commission is not\nanswerable to Parliament while Article 104B(3) says Election Commission is\nanswerable to Parliament. In such a scenario, is it fair to subject the Country\/People\nfor erroneous acts of a supposed independent commission to an \u2018interpretation\u2019\nif an issue is taken to courts? <\/p>\n\n\n\n<p>The\nEC itself is full of controversy. The 3 members are eternally bickering. Some\nmembers are even taking internal issues to public domain. Are these behaviors\naccepted by Public Establishment Code? The 19a Article 104(1) requires all 3 members\nto be present for quorum but Article 104(1) a states that while Chairman\npresides all meetings in his absence another member can preside. Isn\u2019t this\ncontradiction Article 104(1) which says all 3 must be present for decisions to\nbe legal which is further contradicted in Article 104(3)? We have to now wonder\nhow many decisions of the EC is actually legal given the confusions in quorum! <\/p>\n\n\n\n<p>The EC\nhad to give a fresh date at the time of cancelling the President\u2019s set election\ndate (regardless of whether he had a mandate to only cancel an electoral\ndistrict and not islandwide) <strong>\u2013 NOT DONE<\/strong> (President set date for 25<sup>th<\/sup>\nApril \/ EC cancelled this date on 19 March but did not issue fresh date) <\/p>\n\n\n\n<p>The EC\u2019s\nnew election date had to be 14 days from the date gazette for elections <strong>\u2013\nNOT DONE<\/strong><\/p>\n\n\n\n<p>The EC\nwas bound to ensure that a new Parliament convened by 2<sup>nd<\/sup> June by\nholding elections <strong>\u2013 NOT DONE<\/strong><\/p>\n\n\n\n<p>The EC\non 19 March says a new date will be given on 26 March <strong>\u2013\nNOT DONE<\/strong><\/p>\n\n\n\n<p>The EC\ngazette on 21<sup>st<\/sup> March says a date 14 days from 30 April will be set\nfor new polls date <strong>\u2013 NOT DONE<\/strong><\/p>\n\n\n\n<p>The EC\nis bound by Section 10 of Parliamentary Elections Act to set a date not less\nthan 5 weeks and not more than 7 weeks from closing date of nominations (between\n27 April and 14 May) <strong>\u2013 NOT DONE <\/strong><strong>(nominations\nclosed on 19 March \u2013 7 weeks from 19 March is not 20 June which is date EC has\nfixed)<\/strong><\/p>\n\n\n\n<p><strong>The EC did not\ndeclare an election date after cancelling 25<sup>th<\/sup> April election date.<\/strong><\/p>\n\n\n\n<p><strong>The EC did not\ndeclare a date 14 days from 25<sup>th<\/sup> April <\/strong><\/p>\n\n\n\n<p><strong>The EC did not\ndeclare a date 14 days from 30 April as assured in its gazette<\/strong><\/p>\n\n\n\n<p><strong>The EC did not\ndeclare a date on 26<sup>th<\/sup> March as assured during press conference on\n19<sup>th<\/sup> March <\/strong><\/p>\n\n\n\n<p><strong>The EC did not\nfollow rule of declaring date no less than 5 weeks and not more than 7 weeks\nfrom nominations closing date. <\/strong><\/p>\n\n\n\n<p><strong>Without following\nany of the above, the EC announces 20 June as election date. <\/strong><\/p>\n\n\n\n<p>There\nis no requirement for any constitutional coup in a pandemic situation. Anyone\nwho resorts to this avenue are simply doing so for their political advantage. With\nno conclusive end to COVID19, common sense should dictate that we cannot\nindefinitely postpone Parliamentary Elections. <\/p>\n\n\n\n<p>The\nEC as shown above has messed up its role. But given that it has set a date, Elections\nmust be held on 20 June. Political parties must refrain from childish endeavors\nto stall the elections. Their theatrics will not change election outcome. These\ndramas, if at all, are only reducing their chances of getting public approval. <\/p>\n\n\n\n<p>One\ngood outcome in the faux pas of the Election Commission &amp; Political Parties\nis the increased public scrutiny of people in public roles and many are even reading\nthe Constitution and making their own interpretations. These are all high\npoints in any democracy where the sovereignty lies with the People and the\nExecutive, Legislative and Judiciary are only acting on powers delegated to\nthem by the People.<\/p>\n\n\n\n<p><strong>Shenali D Waduge<\/strong><\/p>\n","protected":false},"excerpt":{"rendered":"<p>The President in dissolving Parliament on 2nd March &amp; setting a new date for polls followed all the rules. Having set a date it was left to the Election Commission to conduct the polls. Yes, the country was facing a global pandemic. But the country also weathered 30 years of terrorism and continued to hold [&hellip;]<\/p>\n","protected":false},"author":1498,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":true,"template":"","format":"standard","meta":{"footnotes":""},"categories":[47],"tags":[],"class_list":["post-101908","post","type-post","status-publish","format-standard","hentry","category-shenali-waduge"],"_links":{"self":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/101908","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/users\/1498"}],"replies":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/comments?post=101908"}],"version-history":[{"count":0,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/101908\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/media?parent=101908"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/categories?post=101908"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/tags?post=101908"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}