By Laksiri Fernando –

Dr. Laksiri Fernando

The holding of much delayed local government elections is apparently caught up in a political, or rather a personal quagmire, more than a legal one. The Minister of Local Government, Faiszer Musthapha, at a press briefing on the 8th April (See video, Daily Mirror, 8 April 2016) declared in essence that ‘political party secretaries are responsible only for the party members, but I am responsible for the whole country!’

He was directly referring to the General Secretary of the UPFA, and also a Cabinet Minister of the present Government, Mahinda Amaraweera saying: “Mata vagakeema thiyenne ratata. Ae nisa, sandanaye lekam kiyana vidiyate mata ikman karanna baha” (My responsibility is to the country. Therefore, I cannot expedite the elections as the Secretary of UPFA says).

This is extremely an arrogant statement. The Minister is responsible to the Cabinet (headed by the President and the Prime Minister) and through it collectively to Parliament and the country. Of course he is personally responsible, if something goes wrong in the LG elections or any other matter under his purview. This is accountability.

If he is so concerned about the ‘opinion of the people’ or the ‘country,’ then he should allow to hold the elections at least for the councils for which there are no controversies about delimitation. This is requested by the PAFFREL (People’s Action for Free and Fair Elections) and some other parties as he admitted at the press briefing. This was the same opinion expressed by many editorials of independent newspapers, particularly ‘The Island.’

The Minister also admitted that even the Chairman of the Elections Commission has asked him to allow the elections to be held as soon as possible. If there is any opinion poll on the subject in the country, what would be the result? It could reasonably be assumed that the overwhelmingly majority will ask for the elections to be held without delay.

Who is Responsible?

Under the 19th Amendment, the holding of the elections is the responsibility of the Elections Commission, not the Minister. However, to hold the elections under the new electoral system, the delimitation of wards should not be held up. There are few other requirements that the Minister should fulfill. That is the responsibility of the Minister. In my view, the Minister is clearly stalling it on the pretext that the delimitation process is not complete, for some reason – political or personal.

In fact the delimitation of wards was gazetted under the hand of the President on the 21st August 2015. In that gazette, there was no call for ‘Appeals.’ It appeared final whatever the defects or weaknesses. It could be assumed that the President ordered the gazette under the instructions of the then Minister, Karu Jayasuriya. The Order reads as follows.

“By virtue of powers vested in me under Section 3C of the Local Authorities Elections Ordinance (Chapter 262), I, Maithripala Sirisena, President of the Democratic Socialist Republic of Sri Lanka, do hereby order that the areas referred to in the schedule hereto, shall be Wards of Local Authority Area specified in that schedule for the purpose of Ordinance.”

It is true that according to the Ordinance, under Section 3D, there are some discretionary powers given to the Minister ‘to cause an alteration to be made to the boundaries.’ The full section is as follows.

“3D. (1) The Minister may cause an alteration to be made to the boundaries of the wards as published in the Order made under section 3C. Further the alterations shall be made on the recommendations of a Committee consisting of five persons appointed by the Minister and the requirements specified in section 3B shall apply to and in respect of any such alterations being made.

(2) The new boundaries, names, numbers or letters of each ward boundaries of which are altered under subsection (1), shall be published in the Gazette by the Minister and take effect in respect of an election held under this Ordinance immediately after such alterations are effected.”

It is obvious that these powers are meant to be for ‘subsequent alterations’ and not for a ‘review process’ through ‘appeals’ after the President gazette the delimitation of wards. What it says is “The Minister may cause an alteration to be made to the boundaries of the wards.” There is no mentioning of ‘appeals’ or ‘review’ in Section 3D. ‘Appeals’ and ‘review of the delimitation report’ are Minister’s own inventions.

There is no question that the procedure prescribed in the Local Authorities Elections (Amendment) Act of 2012 has some serious weaknesses. One of which is the lack of a procedure for the National Delimitation Committee itself to take into account any appeals ‘after a preliminary report’ is published. However, what was published by the President is not a preliminary report but the Final. There is no much point in asking the President to gazette the report if it was fundamentally flawed or going to be fundamentally revised. That is what is happening now diminishing even the credibility of the President.

Minister’s Claims

At the press briefing, the Minister has rejected the view that ‘elections could be and should be held for the councils for which there are no controversies.’ He has said “Eke Naithika prasnayak thiyenewa” to mean “it has a legal problem.”

After that press briefing, he has now published an article trying to justifying his position titled “The Local Government Elections Must Restore Faith” (Colombo Telegraph, 10 April 2016) which says the following.

“The National Committee shall also have the power to recommend the formation of multi member wards. These wards are then gazette by the President. The Gazette does not in any way indicate finality. It only means that the new ward based system is published for any person to observe and make recommendations. Thereafter, the Act specifies an appeal process where the Minister will appoint a Delimitation Appeals committee. It is upon completion of the appeal process that an Election can be held as according to the Act.”

When he says “The Gazette does not in any way indicate finality” he refers to the Gazette notification by the President on 21 August 2015. When he says, “It only means that the new ward based system is published for any person to observe and make recommendations,” that his interpretation and not what is in the Gazette or the Elections Act. That is why he says “it only means.”

What he says immediately after is completely wrong in my view. He says “Thereafter, the Act specifies an appeal process where the Minister will appoint a Delimitation Appeals Committee.” To me, this is a complete fabrication. There is no such a thing as a ‘Delimitations Appeals Committee’ in the Local Authorities Elections (Amendment) Act 2012. I am referring to Section 3D of that Act which I have quoted before in full.

I kindly request the Minister to quote and show such a process prescribed in the Act.

Conclusion

What the section 3D prescribes is the possibility of the Minister making ‘subsequent alterations’ to the boundaries of some wards yet again without explaining ‘on what grounds.’ This is again a weak part of the amended Act. However, this weakness should not be utilized to abuse power or to stall the holding of any election, even if we agree that the revisions that the Minister intends to do to some council wards are unbiased, objective and correct.

What a mess!