The Election Commission last week hit back at the critics who claim that the Commission was shirking in its duty by not holding the elections to the Provincial Councils whose terms expired last year.
The Sri Lanka Podujana Peramuna (SLPP), the main critic of the Elections Commission charged, the Commission could not wash its hands off the responsibility to protect the franchise rights of the people now that it has been given wider powers under the 19th Amendment to the Constitution, a fact that the Election Commission refuted vehemently.
Deputy Elections Commissioner M.M. Mohamed said, although the Election Commission is empowered to intervene in a situation to expedite elections, it has not been given powers to dictate under which electoral system the elections should be held. That is a prerogative of Parliament.
He said the whole issue had reached the current deadlock due to a change of law introduced in 2013 when the Local Council election to the Batticaloa MC was to be held.
According to the Local Councils Elections Amendment Act of 2012, its provisions were to come into operation on the day the Minister issues a gazette notice giving effect to the new law, and not the day it was passed in Parliament. But in 2013, this provision was changed to say that the new law will come into effect starting January 1, 2013. This action caused the delay in holding the Batticaloa MC as well as PC elections, by many months.
“What Parliament can do now is to pass an amendment to say that the House will postpone the date the Provincial Council Elections Amendment Act of 2017 will come into force. Then the Elections Commission will be empowered to hold the PC elections under the old system,” he said.
“Due to the 2013 change, once an Act is passed in Parliament it automatically comes into force and the Election Commission cannot revert to the old system against the law,” he explained.
The leader of the SLPP Prof.G.L.Peiris last week challenged that the Chairman of the Election Commission Mahinda Deshapriya was making a flimsy effort to absolve himself of the responsibility by merely saying that he did not have authority to act in the matter and that it is a matter which has to be resolved by Parliament.
“We regret very much the attitude of the Chairman of the Election Commission,” he told the Sunday Observer.
“In other countries the Elections Commission in these circumstances have strained every sinew to find a way of giving effect to the sacred duty that is conferred upon them. Look at the record of the Election Commission of India, and even Pakistan. Those governments have always been kept on their toes with regard to so fundamental a matter as the franchise of the people. It is a sacred duty devolving upon the Elections Commission.”
He said, the whole point of entrenching the independence of the Commission through the 19th Amendment is to give that status, to the Elections Commission.
“The provisions under our law is very clear. There was an election system in force earlier, i.e. the system put in place by – Provincial Councils Elections Act of 1988. That system existed until 2017 and in a situation like now the Elections Commission can hold the elections under the 1988 law .”
Prof.Peiris claimed, the Government brought in a new system under the strangest possible circumstances. In the latter part of last year three PCs exhausted their terms of five years, namely, the North Central, Sabaragamuwa and Eastern Provinces.
The Government brought in legislation before Parliament to extend the terms of office of those 3 PCs to enable them to go beyond five years. The SLPP went to the SC to challenge the legality of this decision, and several other leaders of parties in the Joint Opposition joined in that exercise. The SC unanimously held that the terms of PCs cannot be extended beyond five years.
“But the Government was determined not to give effect to the SC judgment and hold the election because they were certain of defeat,” he said.
He said the Government by way of bringing in an amendment to a very useful piece of legislation pending before Parliament to enhance women representation, hijacked it at the committee stage and changed the whole character of the PC election with a 35 page amendment.
That is how the Provincial Council Election Amendment Act No 17 of 2017 was given birth. But Prof.Peiris said, the Government did not carry through to completion the attempt to bring the new system into force , they abandoned it halfway. He claimed that this was done not by oversight but deliberately.
The 2017 Act, sets out certain steps to make the new law operative. In the first step, the delimitation report has to be submitted to the subject Minister, wich happened at the end of February. Then within a fortnight the Minister had to submit it to Parliament, this step too was followed, and Minister Faiszer Mustapha tabled the report in the first week of March.
The next step says, Parliament must debate this report and pass it with a two thirds majority within a period of one month. Parliament never did that, the debate was fixed for two days, but on both occasions the debate was postponed. In such a situation, the law goes on to provide to refer the report to a Review Committee, comprising five members of Parliament, chaired by the PM.
The Review Committee is required to complete the work within two months, to make changes to the boundaries, constituencies, etc. which was not done. The final report of the review committee should be submitted to the President.
“Now the new law, Act No 17 of 2017 is not operative. In such a situation, the law is clearly set out in Section 6 (2) of the Interpretation Ordinance, which says, until the new law comes into operation the old law continues to be valid. The 1988 Act is valid until the Act of 2017 comes into operation.”
But Deputy Commissioner Mohamed refuted this claim saying that the change of law in 2013 has prevented the Commission from holding the election under the old law.
Prof.Peiris however said, this is a deliberate conspiracy, on the part of an unholy trinity - the PM, who says the PC elections will be held before the Presidential Election which is unacceptable.
The second party is the Speaker of Parliament. He has breached his duty in two ways - one, he has not ensured that Parliament debated this report when it was submitted to Parliament in mid March. Second, he never appointed the Review Committee, that is the duty of the Speaker.
The third party to the conspiracy is the Leader of the Opposition, who has said the PC elections should not be held until the enactment of the new constitution. There is no connection between the PC election and the adoption of the new constitution. Besides, he claimed, the new constitution will not see the light of day.
“This is why we have decided to invoke the jurisdiction of the court,” Prof.Peiris said adding that the court vacation starts this week and the new term of the SC begins at the end of August. As soon as the new session begins, the SLPP will be going to the Supreme Court asking for a writ of mandamus to the Election Commission to discharge its statutory duty and hold the PC election in accordance to the law in force.”
Meanwhile, a top official of Parliament put to rest all speculations saying that already the Delimitation Review Committee has been appointed under the Chairmanship of the Prime Minister.
“They have had two sittings so far and the next step will depend on the outcome of their report to the President which is due in two months,” he added.
The five year terms of the North Central, Sabaragamuwa and Eastern PCs ended in September and October last year. The terms of three more Provincial Councils are due to expire by the end of this year, leaving only three of the nine PCs functioning by next year if elections are to be further delayed.