November 20, 2019
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    PC elections and legal wrangles

    August 25, 2019

    “The most effective manner in which a voter may give expression to his views is by silently marking his ballot paper in secrecy at a polling booth. Silent and secret expression of a citizen’s preference as between one candidate and another by vote, is no lesser exercise of freedom of speech and expression than the most eloquent speech from a political platform. To hold otherwise is to undermine the very foundations of the constitution.”

    The above statement by Justice Mark Fernando in the case of Karunathilake Vs Dissanayaka stresses the importance of holding an election in a timely manner providing an opportunity for the citizens to express their preference.

    We were reminded of the above when the Supreme Court bench took up the questions referred to it by the President whether Provincial Council Elections could be held by way of a proclamation.

    Three questions had been referred for the consideration to a bench headed by Chief Justice Jayantha Jayasuriya and comprising justices Prasanna Jayawardane, Buvaneka Aluwihare, Sisira de Abrew and Vijith Malalgoda.

    The Bar Association of Sri Lanka (BASL) was informed by the Supreme Court that any member who wishes to intervene and make submissions would be entertained, and on which basis many intervened to argue as to why PC elections should be held or not.

    Questions referred to by the President were whether he could “by proclamation forthwith publish the new number of electorates, the boundaries and names assigned to each electorate so created in terms of the report of the Delimitation Committee submitted to the Minister Assigned the subject of Provincial Councils?, whether once such proclamation is made the PC elections could be held under the Provincial Councils Elections Act and finally whether in the absence of such inability to hold PC elections in terms of the present law, the said elections could be held under the law that was in force prior to the enactment of the PC Elections Amendment Act”.

    Making submissions, President’s Counsel Ali Sabry said that Parliament must undo their doing and the Judiciary should not intervene in the matter. He explained to court how the delimitation process was started but soon after scuttled in Parliament itself and that only two options are available; that is, for Parliament to review it or to amend or repeal the law and go back to the original status.

    “If your Lordships endorse this effort to circumvent the whole thing thereby by pass the legislative power and give that to the executive, it can result in great danger and it’s unthinkable that we can allow that to take place,” Ali Sabry PC said.

    He showed that the law had come into effect, the process has commenced and all that remains to see is a culmination where it is gazetted and until that takes place nothing can be done. The third question asked in connection with section 6(2) of the Interpretation Ordinance which provides that “whenever any written law is repealed in whole or part, a former written law and substitutes therefor some new provision, such repeal shall not take effect until such substituted provision come into operation”, is to establish that in the event the old law has not been repealed by operation of a new law then that old law continues to exist.

    However, appearing for Venerable Elle Gunawanse Thera, another President’s Counsel Sanjeewa Jayawardane told court that even under the interpretation law if one is to consider the PC Elections Act holistically, the Act was not being repealed and therefore the above section does not apply.

    “Your Lordships may take strong cognizance of the action (in rejecting the report) and inaction (by not doing anything about the delay) of Parliament,” Jayawardane PC concluded.

    TNA Parliamentarian M A Sumanthiran who was one of the intervening petitioners, said 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 further pointed out that simply because a perfect system needs to be adopted in relation to the mechanism of holding election, elections cannot be delayed. 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.

    Making submissions on behalf of the Attorney General, Additional Solicitor General Indika Devamuni de Silva said that the delimitation process is still alive in the legislature and that after its process is completed, the election can be called. Out of the 13 intervening petitioners, only President’s Counsel Dr Wijeyadasa Rajapakshe made submissions in court that the elections should be held without further delay and thereby affirmatively answering the questions referred by the President to the Supreme Court.

    Senior Counsel Viran Corea appearing on behalf of the Center for Policy Alternatives and its Executive Director Dr. Paikiasothy Saravanamuttu urged the Supreme Court to be mindful that Provincial Council Elections could be used as a tool to delay Presidential Elections due later this year. Therefore, CPA requested the Court to make it clear to all stakeholders 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 itself.

    Drawing up the relating laws from as far back as the Soulbury Constitution and continuing into the 1972 Constitution, it was explained that delimitation was a necessary part in elections and is mandated to be adopted after every general census.

    “Throughout the Legislature has been left out of the process of delimitation. There is a good rationale for it because it can give rise to a type of manipulation which is called ‘gerrymandering’. Where only for political expediency and not in the interest of the franchise of the people or where elected representatives necessarily pull in the directions of their political party interest coupled with their individual concern and their own prospects of election and etc that will skew the process, is why that since time immemorial this process has been kept devoid of politics,” Corea said.

    The court after taking note of all submission reserved the order to be communicated to the President.

     

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