Elections under new mixed electoral system | Sunday Observer

Elections under new mixed electoral system

6 August, 2017


Despite assurances by the Provincial Councils and Local Government Minister Faizer Mustapha rubbishing claims that the Government was drawing blueprints to postpone the Provincial Council Elections, leading election watchdogs PAFFREL and CaFFE warned that deferring PC elections on a mere Cabinet decision without a referendum, would be unconstitutional.

They were commenting on the move by Minister Mustapha to obtain the approval of the Cabinet of Ministers recently, to amend the Provincial Councils Election Act No: 2 of 1988. The Minister said, there was no question of postponing the PC Elections, but added that Parliament will decide whether these constitutional amendments to the Act are required or not.

PAFFREL Chairman, Rohana Hettiarachchi said, the proposed changes to do away with staggered elections can be made ‘with or without’ an amendment to the Act and without deferring elections. In case of an amendment, a separate clause can say the new law applies to all PC elections after their current term.

Explaining the contents of the Cabinet paper to the Sunday Observer, Minister Musthapha said, there is no question of postponing the Provincial Council elections. The Cabinet has decided that all PC elections should be held on a specified date and an amendment to the Constitution and the Provincial Council Election Act No:02 of 1988 should be brought about to facilitate that. The Government is of the view that the elections should not be held on a staggered basis and there is considerable opposition to that. The Government is also working to see that Local Government, Provincial Council and Parliamentary elections are held under the new mixed electoral system.

Staggered elections

He said, the Cabinet has already granted approval for the amendment. Next, it has to be gazetted and debated in Parliament to decide whether the amendments are required or not. After that, elections to all PCs have to be held on a particular date.

Commenting on the remarks by some local election watchdogs that the Cabinet has no legal authority to postpone the PC elections, Minister Musthapha said, the Cabinet is not going to postpone the elections. We have to place legislation before Parliament and there is a need for a constitutional amendment which requires a two thirds majority, elections can then be held on a specific date.

The tenure of some PCs end this year, while some PCs have been extended up to 2018 and 2019. The Government wants to facilitate all Provincial Councils to have elections on a single date so as not to waste money, resources and time, on staggered elections. There have been allegations that the entire state machinery is used when a PC election is held for one Province.

In fact, the Cabinet of Ministers don’t think there is a need for a referendum to postpone PC elections. Certain steps need to be taken when the Provincial Council Election system is changed.

Party Leaders have to decide, and there is a Steering Committee for that. So, all these processes are beyond my ambit and at the end, Parliament will decide what system is going to be carried out for all elections. Hopefully, the Government will have the PC elections under the proposed new system.

The terms of the North Central, Sabaragamuwa and Eastern Provincial Councils end on October 1. Therefore, until the specific date is decided, a constitutional amendment would be necessary to allow them to function. We believe, in terms of the amendment, Parliament will decide the date on which all PC elections would be held. Asked whether there is a decision to increase female representation in the PCs, the Minister said there is already an amendment to have 30 percent female representation in PCs.

Asked about the comment by Elections Commission Chairman Mahinda Deshapriya, that the call for nominations for the Sabaragamuwa, North Central and Eastern PC elections will be announced on October 2, Minister Musthapha said, the Election Commission will carry on with its functions while he performs his functions with Parliament. We all work in parallel facilitating each other. I don’t wish a confrontation.

In terms of the present law, the Elections Commission Chairman has to carry out his functions, in terms of the proposed law, I have to carry out my functions and in terms of the proposed new amendment, Parliament has to decide whether the Bill should be passed or not.

The sole purpose of having PC elections on the same day is due to public criticism on using a huge amount of public funds. Secondly, various allegations have been levelled that holding PC elections on a staggered basis has weakened the Opposition, as they have to continuously get ready for elections. Therefore, it is not democratic. If we remember, in the early days, we had election after election. What is more democratic? Having all PC elections on one day or having them on a staggered basis? The people would say to have the elections on one day. The amendment will also help introduce the new system, proposed in the Steering Committee.

Our prime objective of introducing these amendments is that the PC elections should be held on one particular day and that date decided by Parliament. For that, it is a simple amendment that we are trying to introduce. We need to bring an amendment to the Provincial Councils Election Act No: 2 of 1988. CaFFE Executive Director Keerthi Tennakoon told the Sunday Observer, the Government can in no way postpone the PC elections without going for a referendum, it is unconstitutional.

It is clear in the ruling given by the three bench judge including Justice Mark Fernando following a petition filed by Waruna Karunathilake under different circumstances. PCs also come under the category of universal franchise. Basically, even if Parliament has the two thirds majority, they have to go for a referendum. Otherwise, there is no way out to resolve this crisis. Sri Lanka is known for universal franchise and every single Government which postponed elections has paid the penalty.

In 1975, Prime Minister Sirimavo Bandaranaike postponed the election using the then Republican Constitution. That paved the way for the concentration of immense power in the J.R.Jayewardene Government which ended in a disaster. At that time, Leader of the Opposition J.R. Jayewardene protested, resigned and contested a by-election and won. That momentum built up to a landslide victory which ultimately had a severe impact on the country’s democracy. On the other hand, former Presidents Chandrika Bandaranaike Kumaratunga and Mahinda Rajapaksa postponed the Local Government elections.

Staggered manner

Tennakoon said, the incumbent Government has also postponed the LG elections. The UNP, whenever in power never had a history of postponing elections. Sometimes, they went for a referendum to postpone the elections and won it. So if they want to postpone the elections as they did in 1982, they can go for a referendum. According to the Sri Lankan Constitution, the Cabinet doesn’t have any powers to grant permission to hold PC elections.

If the Government wants to have all PC elections on the same day, they can declare all PC elections to be held on October 2. Commenting on the Government’s decision to amend the Provincial Councils Election Act, Tennakoon said, it is yet another game plan of the government. They will take the issue up and hundreds of petitions will be filed in courts. Hence, this Government too is playing the same game as that of the Mahinda Rajapaksa government.

President of the National Trade Union Front, Saman Ratnapriya told the Sunday Observer that the former Government conducted the PC elections in a staggered manner. As a result, it had an effect on reflecting public opinion. According to the country’s political trend, if a political party captures power in one Provincial Council, that party has the ability to win the rest of the PCs as well. This is not healthy for democracy. In order to take advantage of this trend and consolidate their power, the former Government conducted PC elections in a staggered manner, first calling elections only for PCs which were advantageous to them.

Ratnapriya said, this is a wrong strategy used by the former Government for its mere political survival. It is more appropriate to take a decision to conduct elections for all PCs on the same day. However, as a policy, we can’t agree to indefinitely postpone elections. At present, LG elections have been indefinitely postponed due to the wrong decisions taken by the former Government on the delimitation process. We maintain the view that the issues relating to LG and PC elections should be sorted out as early as possible without further postponing elections.

At present, a questions has arisen whether PC elections can be postponed by a Cabinet decision. We would also seek legal opinion regarding this matter. As we are aware, the LG elections can be postponed, but there is no ability to postpone PC elections. However, it is important to conduct PC elections on a single day as it would clearly reflect public opinion.

A leading Election Monitoring Watchdog, People’s Action for Free and Fair Elections (PAFFREL) Chairman, Rohana Hettiarachchi said, the Amendment to fix PC polls on a single day is a move in the right direction but they fear that it might be a ruse to delay holding elections in certain Provincial Councils of which the term expires this year.

The terms of the Sabaragamuwa, Eastern and North Central Provincial Councils expire in September and October this year.

The terms of the Central, North Western and Northern Provincial Councils expire in October 2018, while elections for the Southern and Western PCs are due in April 2019. The Uva Provincial Council is relatively new and needs to elect fresh members by October 2019.

Hettiarachchi said, there was no reason to stall the elections to make way for the amendment. Elections Commission Chairman Mahinda Deshapriya has stated earlier that if the gazette notification is issued by the Minister, the Commission can call for nominations in October and hold elections by the first week of December this year. He said, hence, the Government can call for elections immediately without waiting for the amendment to be approved by Parliament, which would be a lengthy process. A sub-clause can clarify that the new law compelling all PC elections to be held on a single day will apply during their next term.

“We strongly believe, if the government was acting in ‘good faith’, it should have dissolved all the PCs with the consent of the Chief Ministers and call for elections to all nine PCs together.”

We believe, all future elections must be held according to a fixed calendar to ensure democracy and minimum disruption to people’s lives and state school system. This is a demand that cannot be compromised.

He said, there is a danger of PC elections being indefinitely postponed, if the government decided to change the PC Elections Act just like the Local Government Elections Act.

“The Government must announce when they expect to schedule the next PC elections- is it after October 2017, October 2018, April 2019 or October 2019.”

The Supreme Court, in earlier judgments ruled twice that the government cannot freeze the people’s democratic right to vote by postponing elections. Therefore, the Chairman cautioned against any move to meddle with people’s franchise right.

PAFFREL filed a fundamental rights application in the Supreme Court on July 5 last year against the postponement of local government elections.

“We resorted to this action after many discussions and efforts failed to convince the Government. Such efforts included a request to immediately hold elections in local government bodies that did not have issues over delimitation, extend the term of LG bodies that was to expire on June 30, 2016 and repeated requests to Elections Commission Chairman and Local Government Election Ministry Secretary to expedite the delimitation work.

The case was last heard in May and the next hearing is fixed as late as September. This in itself is a case of delayed justice.

 


The Cabinet decision
Amendment of dates of Provincial Council Elections (Document No - 59)


According to the decision taken by the Cabinet on 25-07-2017, the twentieth amendment to the Constitution and Provincial Councils Elections (Amendment) Bill, was prepared by the Legal Draftsman, and the proposal made by Prime Minister Ranil Wickremesinghe to publish them in the Gazette and present in Parliament for approval, was approved by the Cabinet of Ministers. 

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