Who has the power to declare Elections: Sri Lanka’s President or Elections Commission?
The country is facing a situation it has never before had to face. Plucking Articles from the Constitution and crying to the Supreme Court without helping deal with the situation, shows how bankrupt the politicians making a furor are. It is they who are violating the spirit of democracy. This is no time to be holding the law books. This is a time for understanding. Certainly elections must be held. A country has to have a government. But, this situation calls for looking at the scenario without political bias or political agendas. With the likelihood of COVID-19 continuing for some years, given that Sri Lanka has only 7 deaths, no ICU patients and no serious casualties, the best option would be a staggered election over 4 days. How that is to be done is the job of the Election Commission. However, Election Commission should not try to do the job of the President, the Health Service or the Armed Forces. It is the President who can decide date for an island-wide election, not the Election Commission, The EC can only change the polling date of a district ‘due to an unforeseen situation’ (24/3 Parliamentary Elections Act)
The People (via Article 4) is Supreme. The Executive, Legislative & Judiciary are only functioning under delegated powers given by the People.
The President dissolved Parliament by Gazette Extra Ordinary No. 2165/8 dated 2 March 2020 & declared elections for 25th April and convening of New Parliament on 14th May.
Can the President dissolve Parliament – Yes, under Article 33(2)(c) / Article 70 (1), 70(2), 70(5)(a), 70(5)(c), 70(7) as Head of State.
Article 70(6) allows a 4month window for new Parliament to convene.
On 21st March – Upholding President’s proclamation, the EC published Gazette Extraordinary No 2167/19 quoting 24 (1) (a) and (c) of Parliamentary Elections Act fixing polls for 25th April.
On 20th April – EC published Gazette Extraordinary No 2172/3 issuing 20th June as the new date for an island-wide election.
Does the Election Commission have a mandate to declare island-wide polls or does he have mandate to only cancel vote for a district and reschedule date for that district alone?
The Election Commissioner by mandate 24/3 of Parliamentary Elections Act can only change date of a district – NOT ALL DISTRICTS. Therefore, the EC has no mandate to declare island-wide elections on 20 June. Technically, he was bound to have held island-wide elections on 25 April as he did not declare on 19 March which district poll he was cancelling and having that district only go for vote on 20 June. But using 24/3, he can conduct a staggered election over 4 days dividing the districts.
Can a Parliament that has been dissolved reconvene on its own? NO, only the Executive President can summon it. Attempting to reconvene without the authority of the President is committing a violation of attempting to usurp powers of the President.
Can Speaker of the Old Parliament reconvene a Parliament that has been dissolved? NO, the Speaker of the Old Parliament has no role as Speaker once Parliament is dissolved. He has no powers to reconvene Parliament (Article 42(2)
Can the President need Parliament to approve funding? NO
Articles 150 and 151 allows the President to use Consolidated Fund and Contingencies Fund to meet Public Finance for which the present Minister of Finance will have to be accountable to the new Parliament.
Does the Opposition have a case to demand reconvening of Old Parliament? NO
We all know the debacles committed under the Old Parliament – scores of Bills based without debate/lack of majority/denying people to file FR/and allegations that what was finalized at Committee Stage was not what was passed. Some Bills were passed based on SOUND. Former Speaker has much to answer for. The Old Parliament failed to provide compensation for all Salawa victims, all Meethotamulla victims or all Easter Sunday victims. The people have no confidence that reconvening Old Parliament in the face of COVID-19 pandemic will provide any relief to the people given their record of incompetence and lack of ability to serve the People. 97 foreign intel warnings, even giving names of venues and details of suicide bombers resulted in no action to prevent Easter Sunday mass murder. This sums up the level of incompetence of the Old Parliament. Everyone simply passed blame to the other.
What is the real objective in Opposition demanding reconvening Old Parliament?
Is it to cancel nominations of 12th March which concluded on 19th March where UNP and SJB filed separate nominations. Do they now wish to have nominations cancelled in order to contest as only UNP? This is likely the main reason for the tamasha over reconvening Old Parliament.
Can a FR be filed against the President’s Proclamation of 2nd March? Yes, already Maithri Gunaratne (contesting from Sajiths’ SJB) son has filed FR
Can the Supreme Court demand the Old Parliament to be reconvened? NO, the Supreme Court cannot force the Executive President to summon a dissolved Parliament. The Supreme Court lacks jurisdiction to force the President to summon the Old Parliament.
The Supreme Court knows it has no jurisdiction to demand the President to reconvene the Old Parliament.
The Supreme Court also know the President has powers to dissolve Parliament again & set another date for island-wide elections
Therefore, will the Supreme Court wish to be party to a political drama in the midst of a global pandemic?
Is this the time to be plucking Article 70(5) (a) accusing the President of violating it claiming he has to reconvene Old Parliament if he dissolved Parliament on 2nd March in view of time lapse?
Those making the allegations completely ignore that Sri Lanka’s 1st covid-19 case was discovered only on 11thMarch and 1st death was on 28th March.
The Election Commissioner cancelled the President’s declared island-wide election date on 19 March using provision 24/3 of the Parliamentary Elections Act No. 1 of 1981 – but the question is CAN HE CANCEL ISLAND-WIDE election date?
Isn’t he by this very provision able to ONLY CANCEL VOTING in a POLLING DISTRICT?
Does the Election Commission realize their faux pas made on 19th March?
Is this the time to be quoting Article 10(2) (b) (1) of the Parliamentary Election Act against the President claiming he has violated it because in accepting Election Commissioners 20th June date as Island-wide date, Parliamentary Election Act requires polling date to be not less than 5 weeks and not more than 7 weeks from closing date of nominations (19th March)
Is it really fair for the Opposition to be this unsupportive at such a critical juncture? They are well aware that in any normal circumstances, all constitutional provisions have been followed to the word. It is because of this precarious situation the country and the world is in, that everyone has to think of alternate measures. Let us remind the Opposition, that with no terrorism, no country calamity, it delayed local government elections for almost 3 years and even went so far as to amend Acts to suit its advantage. This Government has not done any of the questionable acts that the Opposition as Govt committed during its rule in the Old Parliament.
If the ruckus by the Opposition is simply to cancel nominations so that Sajith will have to say cherio to SJB contesting alone and contest as a UNF alliance with UNP-TNA-SLMC-ACMC-JVP (usual culprits) so be it.
5 years of failures since 2015 and inability to stop mass murder via gun inspite of warnings is more than enough for people to fear yahapalana handling of a virus.
But, with Supreme Court petitioned, hopefully we will not see foreign envoys seated to influence the judges as in Oct2018 and there is little chances of foreign trips on offer too.
However, without allowing another court case debacle, the best option now is for the President to use Article 33 (d) of the Constitution and consult the health services re impact of people going to vote, cancel 2nd March proclamation and 20th June election date and issue a fresh proclamation with new Island-wide election date and ask Election Commission to conduct elections over 4 days. There is no requirement to reconvene the Old Parliament and only a fresh island-wide date is being issued with a new date to convene the New Parliament.
The Opposition may feel jubilant that its objective in cancelling the 9th March nominations has been successful; little do they realize whatever bandwagon they contest under this team are dreaming if they think that people have faith to place their lives in the hands of UNP-TNA-SLMC-ACMC and JVP again.
The people will only lose more faith in the Opposition the moment it starts filing FR against the dissolution and demanding the reconvening of Parliament. Leaving all law books, Articles aside, the People were fed up with the Yahapalana Govt and it is high time they woke up to this reality.
By making a political nuisance of themselves, they will only be reducing their vote base further. Of course the bloc vote will not change but with the manner the current President, together with the Public Sector, Health Services, Armed Forces & Police are handling the COVID-19 situation despite immeasurable difficulties, the voters know that if yahaplana govt and its alliances were in power Sri Lanka would be holding the record for the highest COVID19 deaths in South Asia.
The success of Sri Lanka’s covid-19 has been repeatedly attributed to the magnanimous efforts put by the intelligence services, all of whom were hounded and imprisoned under yahapalana rule and if yahapalana was in power during COVID19 – people will not need to imagine the situation in Sri Lanka they will be experiencing it first-hand.
Shenali D Waduge