26 September, 2020

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‘Parliamentary Election 2020 & Date Of Summoning Of The New Parliament’

By S. Ratnajeevan H. Hoole

Prof. S. Ratnajeevan H. Hoole

I refer to the Daily Mirror article, of today’s date (10 April, 2020), on the date for summoning the new Parliament after elections, and The Island’s two pieces yesterday on the same topic. I am in “Lockdown” in Jaffna and write on my own as a Member of the Election Commission in response to Dr. P.B. Jayasundara’s letter. 

Dr. Jayasundara wrongly starts the Daily Mirror interview: “President’s Secretary P.B.Jayasundara in a reply to the Chairman of Election Commission said that the date for fixing the poll is the responsibility of the Election Commission and therefore the question of reference to the Supreme Court in terms of Article 129 of the Constitution does not arise.” He is missing the point. Reference is urgent.

Yes, fixing the date for polls is the EC’s responsibility. But averting a constitutional crisis is the President’s more than anybody else’s, and only he can seek the constitutional advice of the Supreme Court. 

We have clearly stated that we cannot fix a date to conform to the constitutional requirement of Constitution’s Article 70(5)(a) that the date of summoning the new Parliament has to be within 3 months of the date of the Gazette for the dissolution of Parliament – which was 2 March –  making June 2 the last date the new Parliament must meet. 

Perhaps most importantly, as in yesterday’s Island’s headline, “Dr. P. B. Jayasundara, Secretary to the President, has written to Mahinda Deshapriya, Chairman of the Election Commission, pointing out that the latter has failed to act according to the full provisions of Section 24 of the Parliamentary Elections Act and should have published another date for the general election as per Section 24 (3) of the Act.  

Dr. Jaysundara is mistaken. Section 24(3) says where due to an emergency or unforeseen circumstances the poll cannot be taken on the date already specified under Section 24(1) in any electoral district the Commission may by order published in the Gazette appoint another day for the taking of such poll, and such other day shall not be earlier than the fourteenth day after the publication of the order of the Gazette. Section 24(3) says that when the poll cannot be taken on the date already specified under Section 24(1) in any electoral district due to an emergency or unforeseen circumstances, the commission may, by order published in the Gazette, appoint another day for the taking of the poll. Further, Section 24(3) specifies that the revised date may not be earlier than the fourteenth day after the publication of the order of the Gazette.

First, Dr. Jayasundara should say should publish, not should have published. We can still publish; no time frame is prescribed. Moreover, on that, the word may gives us discretion.

Dr. Jayasundara further says “As per the advice by His Excellency, it is not possible at this point of time to state that the election cannot be held on or before 28.05.2020.” First, advice to whom? Second, former Justice Minister Dr. Wijeyadasa Rajapakshe,  who is quoted thus in yesterday’s (9 April, 2020) Island: 

“Asked by Shamindra Ferdinado how the President and the EC could reach consensus on a new date, in terms of the Constitution and the Parliamentary Election Act, PC Rajapakse stressed that the issue couldn’t be resolved in line with available Constitutional provisions, or the Parliamentary Election Act.”

Dr. PB Jayasundera

That is, a constitutional impasse is imminent according to the President’s loyalist.

Dr. Jayasundara further states “I need hardly emphases that it is the right of the people of this country to exercise their franchise, which their sovereign right [sic.]”

Indeed, it is because of that right that the Commission stated that the elections cannot be held on time for the new Parliament to meet by 2 June, 2020. If we set that date, it would mean one of two things. One, the public in fear of CORONA-19 would not stand in lines to vote. That means they will lose their franchise, but will exercise their franchise if we do not rush into polls and watch the situation. This care for the franchise of the people therefore seems insincere and disingenuous to me, to service a narrow political agenda rather than any national cause as the time urgently calls for.

And Two, if not the scenario envisaged under One, if we guestimate when the pandemic will be over, and set a date and the pandemic is still raging, people will go to the polls, stand in crowded lines, and spread this life-threatening virus. Alternatively, we might have 225 MPs elected with a handful of votes each as happened in the 1990s when EPDP MPs got returned sometimes with under 10 votes as a result of LTTE death threats against those who go to vote.

Dr. Jaysundara again misses the point in his assertion that “the question of Reference to the Supreme Court in terms of Article 129 of the Constitution does not arise,” . Come 2 June, 2020, the Constitution and the Elections Act will be violated. We at the Commission are the experts with people who have spent their working lives on elections. They are emphatic that there is no way in which the new parliament  can meet by June 2.The obstacle is not only CoVID, but also thedemand for excessive holidays that are upcoming, and the national tendency to truancy until an auspicious day.

Mahinda Deshapriya

Already, there is customary worker absenteeism during the new year and Vesak. This, by itself, makes June 2 less probable than we might optimistically imagine. Postal ballots in high response places like Anuradhapura (with many soldiers) were a small fraction of what should have come in when the curfews started. Will the post office staff, whom we cannot control, deliver the remaining registered post without waiting for auspicious times?

I figure that even the president is experiencing that staff absenteeism. For, his hardly two-page letter of 6 April, has the errors in thought pointed out that are corrected only when the normal complement of staff is present. Moreover, it has seven errors of grammar, not counting mistakes I might have missed – meaning that even the language editors are not coming to work despite the President’s reputation for discipline. How can we in a more relaxed organization imagine an error-free election with all poll cards and legally prescribed forms done right?

We do not want to go there where laws are violated without care as seems inevitable from the refusal to consult the Supreme Court, and we find ourselves with a fixed poll date that is unlikely to work out. We need resolution. Only the Supreme Court’s direction, even if we do not agree with whatever it might say, has no appeal and will give finality to whatever we do. That right of consultative appeal is defined under Article 129(1) of the constitution: 

If at any time it appears to the President of the Republic that a question of the law or fact has arisen or is likely to arise which is of such nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer that question to the Court for consideration and the Court may, after such hearing as it thinks fit within the period specified in such reference  or within such time as may be extended by the President, report to the President its opinion thereon.”

Note – only the President can ask the Supreme court for advice, and even specify a date by which the answer has to be given. Whatever opinion the Supreme Court gives cannot be appealed. If the Commission on its own chooses to act unilaterally, someone will go to court and the matter will drag on beyond 2 June anyway.

It is good to recall Article 33(1)(d) of the Constitution:

33. (1) (d) It shall be the duty of the President to on the advice of the Election Commission, ensure the creation of proper conditions for the conduct of free and fair elections and referenda. 

We, the Commission, invoked this provision when advising President Maithripala Sirisena not to postpone the long overdue provincial elections. Here, although I wanted this provision explicitly invoked, the Chairman did not and said that Mr. Abeyesekere also did not want to.

Although we did not invoke 33(1)(d), it is there. Whether we explicitly invoked the article or not, I believe the President is duty-bound to heed our advice as contained in our letters of 31 March and 1 April 2020. It is best for the president to revoke his Gazette of 2 March. Parliament will then run smoothly just as it did after the Supreme Court declared the 27 October 2017 dismissal of parliament by Maithripala Sirisena illegal. The Parliament elected on 17 Aug. 2015 can go on until 5 years after its first meeting on 1 Sept. 2015. That could give us a way out of this Corona crisis. It is best, however, if the Supreme Court gives this advice. Either way, it is in President Rajapaksa’s hands; not in the Election Commission’s as he makes out.

The military has been directing traffic from even before the crisis. Curfews, although good for fighting Corona, have no legal basis. So those being arrested for breaking curfew cannot be charged. The IGP has no business arresting those who criticize the government. Some say that subsections 6, 7 and 8 of Article 15 permit the derogation of some rights in an emergency in the interests of the economy, national security, public order, the protection of public health or morality, etc. But on close reading all these restrictions on our rights must be prescribed by law.  That means even the curfews must have the authority of parliament. 

The curfews and restrictions are excused as being good for these difficult times – it is but a sleight of hand when the restrictions can easily get the blessings of our representatives in Parliament. Why are we denied a parliament at these critical times? Is it because our rights can be curtailed without parliamentary oversight? It seems to me that when there is a lawful way to restrict our fundamental rights, an institutional crisis is being precipitated to do away with the law in the name of doing good. 

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Latest comments

  • 3
    4

    Sinkala THONDA
    What rubbish are you talking about.
    1) Going by what the writer Dr. Hoole state and the write in and attacks on the Government & Rajapakshe stance in all these, it is very clear the Freedom of Speech remains VIBRANT.
    Going by what appears undoubtedly YES.

    *** How do you know if Dr.Hoole will be alive in a few days judging by what happened to Iqbal Athas who did a somersault catapulting Freedom of Speech in the dustbin.

    2) The question remain is the Constitution and acting to the letter of the law to maintain democracy….
    The Law is an Ass they say. Its there for guidance.
    On the other hand, where do you find a Democracy practiced to the letter of the law.
    This is the question in issue. The Constitution may say so but the Circumstances vary.
    *** What the hell are you saying. The first time I have heard from a Moron like you that a Written Constitution and the Law that flows from it is GUIDANCE for Gothas Lawyers and Judges . Only in Lanka mate. No wonder the Judges heard you and decided to clear Gotha to run for Presidency even though the Constitution barred him because he was and still is an American Citizen
    3) We may never know, it may warrant the Prez to bend the Constitution in the present circumstances.
    *** Why worry about the Constitution when there are other bits of the President which have hardened through old age which he cant bend.
    As this is not ordinary times.
    4) Better not give a hard time to the President during these difficult times.
    *** I also dont want to give you hard time as that will up set ” Chiv” as one too many dig at Thonda.
    Have a Good Chinese ” Coronoa Fried Rice “

  • 2
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    Dr.Coole , Be cool and please leave that to the EC’s decision , because no-body takes serious about the Constitution of sri Lanka as that have so many holes and loop -holes!

    • 1
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      Mr. Law Lover,
      /
      Well said…

      • 4
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        Stupid fellows, He is a member of Election Commission where commissioner cannot make sole decision. Without any shame the commissioner tried to bow down to the manipulation of Rajapakse criminals, but was put in his place by other two members of the election commission. Commissioner cannot have secret talks with Rajapakse criminals and has to inform other members what he discussed with them. Their is collective authority and not one man show.

        • 0
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          When someone tends to call every other person stupid, it is not his intelligence by sanity that comes into doubt.

  • 1
    3

    This is a time eveyone is attempting survival and not thinking about elections. Hundredsof thousands of people are finding difficult to get their food and medicine. If you are a learned gentleman why don’t you suggest the measures government should take to ease the burden of poor people forgetting your membership of the election commission?

  • 1
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    Legalities fade away when thousands of poor people starve in their homes, unable to earn a living or go out to get food..elections are not at all the priority for the months to come..if politicians want elections they must first become victims of covid-19 and show their mettle..wishful thinking, huh..

  • 0
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    Let us cut the clutter. Prof. Hoole says that the EC can publish a date and implies that the letter requesting the seeking of the SC “advice” was to avert a constitutional issue. Let us respect the good intentions of the Prof. When a gazette notification is issued by the EC without giving a date who then is the creator of the constitutional issue? Can’t I complain to the judicial authorities that my fundamental right of voting is about to be violated by the EC? The prudency demands that no date can be fixed as such. I trust that the EC was sensible to collect all the supporting documents as to why the elections cannot be held on april 25 and a new date cannot be fixed as such. Now South Korea, a country worse off than us with respect to the COVID 19 virus conducted an election. The EC must definitely pass the buck to the authorities by saying that this is the new date we fix, irrespective of any health issue and this is the additional cost that is required to conduct the election under a pandemic situation. Otherwise! the EC gets unwittingly dragged into a situation where its impartiality and integrity would be questioned.

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