1 December, 2021

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The Election Commission – Five Questions That Require Answers

By Nihal Jayawickrama

Dr. Nihal Jayawickrama

The Election Commission has announced that it shall conduct the General Election on 20th June 2020. Over the media, politicians, journalists, and lawyer-politicians have defended that decision by providing inaccurate interpretations of certain constitutional provisions. I do not claim infallibility, but the relevant provisions of the Constitution have been stated in such clear terms that their meaning should be obvious to all except those who view it through politically tainted lenses.

The Constitution is the supreme law

The Constitution is our supreme law. It means that every other law should be read subject to the provisions of the Constitution. No legislative, executive or administrative act can override the Constitution. No power vested in any person or body by the Constitution can be exercised by any other person or body.

Dissolution of Parliament

There are three procedures leading to the dissolution of Parliament. The first is when two-thirds of all the Members of Parliament pass a resolution requesting the President to dissolve Parliament. Such a resolution may be passed at any time. The second is when the President decides to dissolve Parliament, but only during the last six months of its five-year term. The third is when the five-year term of Parliament ends.

Article 70(5) of the Constitution states that Parliament may be dissolved by a Proclamation issued by the President. That Proclamation must (a) fix a date or dates for the election of Members of the next Parliament; and (b) summon the new Parliament to meet on a date not later than three months after the date of such Proclamation. Similarly, when Parliament stands dissolved upon completing its full term of five years, the President is required to forthwith issue a Proclamation (a) fixing a date or dates for the election of Members of the next Parliament; and (b) summon the new Parliament to meet on a date not later than three months after the date of such Proclamation. 

Therefore, it is the President, and the President alone, who is vested with the power to fix the date or dates of a General Election. That power cannot be usurped by any other person or body. Nor can that power be delegated by the President to any other person or body. It is equally evident that, upon dissolution, the new Parliament must be summoned to meet within three months of the date of the Proclamation. Thus, the Constitution ensures that the maximum period that the country may be governed without a Parliament is three months.

The Election Commission

The Constitution has established an Election Commission consisting of a chairman and two other members. It is an independent body whose object is “to conduct free and fair elections”. Its duty is “to secure the enforcement of all laws relating to the holding of elections”. The law relating to parliamentary elections is set out in the Parliamentary Elections Act, No.1 of 1981. That Act addresses issues such as the registration of electors, the nomination of candidates, the appointment of returning officers and other staff, the recognition of political parties and the allocation of symbols, etc.

Proclamation of 2nd March

On 2nd March 2020, the President issued a Proclamation under Article 70(5) of the Constitution dissolving Parliament, six months before its term was due to end. In that proclamation, he fixed 25th April as the date for the election of Members of Parliament, and 14th May as the date of the first meeting of the new Parliament. In terms of the Interpretation Ordinance, the President is entitled to amend, vary, rescind or revoke the Proclamation issued by him. Therefore, the President may, at any time, change the date of the general election and/or of the first meeting of the new Parliament, so long as the latter is within the period of three months of the date of the Proclamation (i.e. 2nd June 2020). The President has, so far, not chosen to do so. 

New date for the General Election

The Election Commission, purporting to act  under section 24(3) of the Parliamentary Elections Act, has published an order fixing 20th June 2020 as the date for the general election of Members of Parliament, overriding the date fixed in the Proclamation issued by the President. The Commission has, in so doing, not only arrogated to itself a power vested in the President by the Constitution, but has, in effect, also amended or varied the Proclamation issued by the President under Article 70(5); a power which only the President possesses, and which the Constitution has not conferred on the Election Commission or on anyone else.

Section 24(3) of the Presidential Elections Act, under which the Commission has purported to act, states that “where due to any emergency or unforeseen circumstances, the poll for the election in any electoral district cannot be taken on the day specified”, the Election Commission may, by Order published in the Gazette, “appoint another day for the taking of such poll”.  This section contemplates a situation where, as the date fixed by the President for the general election approaches, it becomes evident that, due to any emergency or unforeseen circumstances such as heavy rainfall or a widespread flood, it is impractical to conduct a poll in a particular electoral district. The Commission may thereupon fix another date for that purpose. This is a limited power, confined to an electoral district, and cannot be utilized to override the date for the general election fixed by the President in his Proclamation issued under Article 70(5) of the Constitution. This is clearly evident from the consequences of that action.

Five Questions

As a citizen of this country, and as a registered voter, it is appropriate to ask the Election Commission to answer the following questions:

  1. When the President issued his Proclamation on 2nd March, the World Health Organization had four days previously described the novel coronavirus as “a public health emergency of international concern”. On 16th March, when the Commission commenced accepting nominations, the World Health Organization had five days earlier proclaimed Covid-19 as a “pandemic”, i.e. a global spread of a new disease. Since the Commission apparently did not consider either of these developments as constituting “unforeseen circumstances”, what were the “unforeseen circumstances” that subsequently arose which led the Commission to believe it could act under section 24(3)?
  1. The Commission is no doubt aware that under Article 70(7) of the Constitution, if at any time after the dissolution of Parliament, the President is satisfied that an “emergency” has arisen of such a nature that an earlier meeting of Parliament is necessary, he may by Proclamation summon the Parliament which has been dissolved, and such Parliament shall stand dissolved upon the termination of the “emergency” or the conclusion of the General Election, whichever is earlier. The President apparently does not consider that such an “emergency” has arisen and has therefore not acted under that Article. What, then, is the “emergency” that the Commission is aware of and which led the Commission to believe that it could act under section 24(3)?
  1. Does the Commission seriously believe that a power conferred on it by ordinary legislation to postpone a poll in a particular electoral district owing to an emergency or unforeseen circumstances can be expanded and elevated to constitutional status to enable it to determine the date of the General Election, and thereby usurp a constitutional power vested only in the President of the Republic?
  1. Having changed the date of the general election to 20th June, when does the Commission expect the new Parliament to meet? Does the Commission intend to summon the new Parliament, and if so, by what authority? The Commission is no doubt aware that the President has, by Proclamation, summoned the new Parliament to meet on 14th May, and that any new date he may proclaim is required by the Constitution to be before 2nd June.
  1. Is the Commission not aware that the Proclamation issued by the President on 2nd March will lapse on the expiry of three months from the date of its issue. It has no life beyond that date. If a General Election has not been conducted, and if a new Parliament has not met by 2nd June, the immediate consequence will be that the dissolution of the 2015 Parliament, ordered by that Proclamation, will be rendered of no force or effect in law, especially since its five-year term ends only on September 1st. Therefore, when that Parliament is still in existence on 20th June, how can the Commission conduct a General Election?  An existing Parliament must be dissolved before the new Parliament is elected. 

Conclusions

The only action that was taken in pursuance of the Proclamation issued by the President on 2nd March was the acceptance by the Election Commission of nominations submitted by political parties and independent groups for the 22 electoral districts. If it is the wish of the political parties represented in Parliament that the nominations submitted in March should be retained, and that they should not be required to repeat the process again whenever the General Election is held later this year, a simple amendment to the Parliamentary Elections Act will secure that objective.

It would be ill-advised to conduct polling in 22 electoral districts in the midst of a pandemic. Nor does social distancing appear to be a feasible option if Parliament convenes with its 225 members, stenographers, Hansard reporters, supporting staff and security officers. The procedure adopted by the United Kingdom Parliament where only a small number of members representing the different parties enter the chamber, while others participate through video conference is an option worthy of consideration. However, the situation prevailing in the country today may well justify the prorogation of Parliament for the next two months, after essential business has been completed.

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Latest comments

  • 32
    2

    I am very sure that Chairman of the election commission is fully aware that he has no powers to fix the date. That is why he asked the president to get the opinion of the Supreme Court. A military President never ever give respect to the constitution and rule of law. Even he did not wear a national dress on the Independence Day. The chairman of the election commission must have threatened or bribed by the military President. The other two commisssion members were against to his decision. He never consulted Medical experts or other political parties.
    People of Srilanka should understand the importance of constitution every one should salute to the constitution and unbiased Judiciary. Once the people loose their right, it will very difficult to get it back.

  • 16
    3

    Thanks, Dr Nihal Jayawickrama,
    .
    The most important issues have been clearly dealt with by you
    . Some of the corollaries that follow may not be palatable to some who are sure that they are more important than the citizens of the country as a collective.
    .
    For instance, I heard the SLPP’s Udaya Gammampila proclaim in a video that the “nominations submitted in March” will “be retained”, and gloating over the fact that the party that was the UNP has been trapped into fielding two teams who will oppose each other (and split their vote).
    .
    As for the Elections Commission, the government would have us believe that one Member of the Commission, namely Professor Ratnajeevan Hoole, is taking himself far too seriously. But hush . . . is it not true that Hoole himself is the one person who has highlighted the problems.
    .
    The Commission was originally to consist of five members, and thus has a quorum of three. All are old – it is true only Nalin Abeysekera is older than me. What happens if one of them is unable to attend a meeting?
    .
    It is high time we old codgers recognised our mortality and allowed younger people to run this country.

  • 16
    4

    Thank you Prof. Jaywickrama,
    .
    The problem is becoming clear to us is the rulers seem not respecting the opposition and what they have to share about the CORONA crisis. Even if opposition repeatedly asked them to go for more test, respecting the recommendations of the WHO, the govt has put that off for unfathomable reasons. By 19th April, that totally ignorant minister of Health had the termerity to challenge powerful nations and utter ridiculous remarks about srilankens would join hand with the nations that DROVE away corona from the island. But to everyone s surprise, on the very day 19.April. itself showed to the world, that over several dozens of NAVY personnel were tested positve for COVID 19. :
    .
    As is the case with Mahinda Rajapakshe’s previous govt – the health minister WEARs her saree as usual and stays yet today in the same cabinet, even if that would have been a VERY reason any of the civilized world to resign her job.
    Quote
    However, the situation prevailing in the country today may well justify the prorogation of Parliament for the next two months, after essential business has been completed.
    Unquote

    So how would this ESSENTIAL BUSINESS be completed if the PARLIAMENT would not be resummoned ? And current rulers deny to have received any financial support though various news sources repeatedly report them to have received of 2 billions of US dollars during the last few months. In a situation where the parliament remains closed, how can those funds be made transparent and accountable to the nation, whose vote cause them to be elected .

  • 22
    4

    So far we have received two enlightened and clear views on this matter by Prof. Savitri Gunasekera and Dr. Nihal Jayawickrema. Why cannot the government get advice from these intellectuals rather than from idiots like Prof. G.amini Peiris and Mr. Manohara de Silva.

    • 18
      0

      Dear Dr. Gnana Sankaralingam,
      .
      Professor G.L. Peiris is no idiot
      Nor is he a common crook. He is something worse. He is intellectually dishonest.
      .
      I’m also trying to do something else with this comment. Everything in your comment is currently in bold – and all that is below this. Everything in bold is self-defeating – more difficult to read. Hopefully, my comment will corect that. No, it’s not your fault – it has come down from the comment above yours.
      .
      G.L. Peiris had left just before I entered my last school. He had left behind a tremendous reputation as a scholar in the school. Unless we stipulate s special meaning to the word, we cannot call him “an idiot”.
      .

      • 2
        0

        This comment was removed by a moderator because it didn’t abide by our Comment policy.

        For more detail see our Comment policy https://www.colombotelegraph.com/index.php/comments-policy-2

      • 9
        2

        Panini, I did not post it in bold letters, in fact I never even use capitals unnecessarily. It may have been done by administrators. Yes I know about the scholarly reputation of Prof Pieris who was of the same age as me. Thomians have told me that he was a fat and pleasant guy then, unlike the present lean and hungry look, who used to walk away with several awards at the prize giving. I agree with you that he is not an idiot, but an intellectually dishonest opportunist.

        • 1
          1

          Dear Gnana,
          .
          About bold.
          .
          It wasn’t you. It had inadvertently happened owing to leelagemalli’s comment, the last third of which is in bold and had “infected” about eight comments below it. Not even he could have corrected his comment, but any of us could have inserted a comment after his, correcting those below. Please see if this helps:
          .
          https://web.njit.edu/~marvin/cs103/lectures/ch04-6.pdf
          .
          Using these devices can be useful, but it may be rather unethical, being a cheap way of attracting attention to your comment – at the expense of others. Mea culpa! I think that paragraphing is sensible, and not at all reprehensible.
          .
          The CT moderators don’t decide to add emphasis, but may remove unjustified emphasis.
          .
          As for GL – what a metamorphosis! He was brilliant, and so respected as a liberal – right through the time that he was Vice-Chancellor, Colombo. Tragic. Why did this happen? I don’t think it proper to put my half-baked conjectures on a public forum.
          .
          It won’t be difficult for you to find out my email address by Googling my correctly spelt name. Such exchanges of ideas among decent people whose backgrounds lead to different perspectives is always healthy.

        • 0
          0

          “Prof Pieris who was of the same age as me…”
          May I know from the great English scholar if Peiris is younger or older than him now?

          • 1
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            This conclusively proves that you are an incorrigible idiot. You seem not to know the meaning of the word same. How can a person of same age be younger or older than the other at any given time.

      • 10
        0

        THE CORRECT WORD TO CALLED AS FAR AS G.L.PEIRIS IS “deshaplana pimpiya”

      • 8
        1

        Dear Mr SM,
        .
        They are called learnt idiots.

        He simply wants to hang on with politics until his end. That is it. The kind of Prof. if they remained as prof could do lot more with their knowledge, but they are square peg in a round hole for srilanken politics.

        I wonder how these MEN with much high academic achievements face their family circles while continuing their abusive nature. To me, even if i would hurt anyone within our colleagues, I myself feel not okay… and try my best to meet and discuss with them. But GLP style academics though achieved alot, now being close to the kind of rascals, are even worst than they themselves.

        I think they have got all these in their genetics Mr SM. We may be some mutations and that is why we are different sinhalayas/srilankens.

        I thought older you become, wiser you are… But looking at the manner GLP behaves… older you become stupidier you are. He may have lost his neuron cells over recent past, becasue he was flanked by rascals/rapists/murderers and the like high criminals rather than any one with a same feather.

        • 2
          0

          Yes, leelagemalli, I agree that when this sort of change takes place in a man, it is harmful to all – and in this instance, it could be called tragic.
          .
          I’m seeing your comment after responding to Dr Sankaralingam.
          .
          leelagemalli, now you are a really nice guy! Would you mind if I embarked on “an English lesson”? The verb learn.
          .
          I always use learnt as the past tense and the past participle. Every time I type it, it gets underlined by the American spell check.
          .
          However, as an adjective, even in British English, it should be “learned man” (pronounced as two syllables) as distinct from “learnt response” – which has a quite different meaning. Americans used “learned” even for that.
          .
          Seeing words underlined is disconcerting; I realize that Americans will win the spelling battle. Notice the “z” that I changed to!

  • 17
    1

    Kudos to Nihal J for setting the constitutional provisions out so clearly, and for having called out the miscreants, whomsoever they may be for having violated the supreme law of the land. Have these scallywags not heard that ignorance of the law is no defence? What will they say to this, and how will they respond: EC Commissioner, President, PM, President’s Secretary and all?

    Why do they take the duty of serving the people who are supreme, so casually?

    All kudos too to Prof Jeevan Hoole for having fearlessly spoken out against these shenanigans as they were developing – we sorely need more men and women of his calibre if Sri Lanka is to have any hope of rising from this miserable morass and cess-pool of self-serving governance that is totally bereft of ethics.

  • 1
    14

    Mr. NJ as usual is contradicting himself. Section 24(3) “….where due to any emergency or unforeseen circumstances, the poll for the election in ANY electoral district…” That is constitution. But later quietly replaces the ANY with AN to prove his point. “…This is a limited power, confined to an electoral district,…” So, the constitution does not specifically say AN district Section 24(3 refers ANY district. Any sensible person knows the Corona is is serious and covers he whole island. Hence, General Election cannot be held. Further as the Election Commission pointed out how can the EC order officers to conduct the officers when their lives are at risk.You cannot hold elections with skeleton staff which play right into the hands of corrupt politicians rigging the elections sans any International Observers (except the Chinese of course)

    • 7
      0

      Kindly re-read NJ’s reasoning more attentively; In the instance he had chosen to illustrate – ‘to conduct a poll in a particular electoral district’ – the appropriate word is ‘an’, and, not ‘any’.

  • 15
    0

    An international expert on constitutional matters has rendered his interpretation of the Law governing our General Election. His word is that EC has usurped powers beyond its realm.

  • 11
    1

    The 5 questions are pertinent questions to EC. One of the main issues is whether EC has a panel of 3 legal experts to advise them based on relevant clauses during an epidemic. EC’s decisions should be based on a [anel 3 medical experts and a pane of 3 Legal experts and not based on Political pressure with an aim to get two-third majority using low percentage voting risking the life of Voters and the Lections staff including security personnel. This is pure stubbornness by top power-hungry political leaders. I wish the voters will teach them a lesson who do care for their life

  • 2
    0

    Dr Nihal Jayawicrama Could you clarify?
    .
    When Two-thirds of all members of Parliament pass a resolution requesting the President to dissolve Parliament,

    Does the President has a discretion to dissolve or not?

    How could Parliament enforce?

    Should the president act immediately or delay say by one week, two weeks, one year or ………..?

    • 3
      0

      srikrish,
      It is a good question. I think he has to dissolve the parliament without any delay.

    • 2
      0

      This is an interesting question. The language of the proviso to Article 70(1) which was inserted by the 19th Amendment is somewhat ambiguous. However, if 2/3 of Parliament requests a dissolution, I don’t see how the President can either delay or decline. After all, 2/3 of Parliament can commence impeachment proceedings against him. Therefore, I think the President will immediately act as requested.

  • 12
    0

    Dr Jayawickrema has dealt with the most important issues in this article.
    .
    However, so long as the government remains obdurate, there are going to be other contentious issues that are going to surface. What are the implications of this report?
    .
    http://www.sundaytimes.lk/200503/news/were-nominations-valid-ags-advice-sought-401648.html
    .
    In the first comment that I made, I spoke of Udaya Gamampila gloating over the predicament for the “UNP Grouping”. If he continues that way, can the government expect that nobody will go to the Supreme Court if the Attorney-General makes a ruling to keep the President happy? It looks as though certain nominations have been accepted on days that had been declared “Public Holidays”. If one goes along with the spirit in which those things were done, one should not start raising issues of this sort. But what is the spirit of Gammampila’s objections?
    .
    I have yet to see what others have said – no comments visible yet – except that the comment made by me some hours ago – last night – can yet be seen on my “logged-in” computer alone.

  • 7
    2

    For all reasonable persons the sense of despair must be intolerable. For all persons who can reason, that is. Here is a clear interpretation of relevant constitutional clauses. But then, there are lawyers with a “little learning” too. So they will chop and dice and confuse the populace. And in the end they may succeed and let idiocy prevail. They now they have the backing of the herd.

  • 6
    1

    The answer to the first question is that Deshapriya acted in lock step to the president doing exactly as he was told not even bothering to consult with his two other colleagues. Gotler barked orders and he complied first to fix a date and accept nominations until the Royal family realized they were walking into a s–t storm that they had ignored and treated like joke up until that time. So, Gotler barked again and made poor Deshapriya to postpone elections under 24(3) since there was no other choice. Now it got worse. All the lies got exposed. All the media manipulations fell apart. It became apparent the these once corrupt crooks were up to it again. Instead of distributing aid they used it to bribe their supporters and deny aid to anyone else. As more and more people got effected negatively from the loss of income to farmers unable to sell their produce while the new Pohottu Mudalalis in vans made a killing. A new election date that fell within the original three month time frame set by the constitutions became impossible. So Deshpriya was now forced into taking action hoping that Gotler will play ball accordingly. So the new date of June 20 was selected.

    • 0
      0

      Of course Deshpriya, of all persons is the only one soul on earth who knows what could
      happen to him after the GE if that 2/3rd is not declared – as he is continuously recalling
      his predecessor – who just vanished after the last election results. Rest assured THIS IS
      THE AGENDA!

  • 2
    0

    This article is full of “points to ponder”! Since there is so much of confusion it should be the duty of the following, as stated in the same order, to petition Supreme Court immediately to:

    1. For the President to petition Supreme Court to find answers to the above 5 questions and other questions presented to the EC.

    2. Since there is the question whether the Parliament technically has been dissolved or not, in the absence of the President petitioning the Supreme Court, the Speaker assuming that the Parliament is still valid can go to the Supreme Court as the Constitution states.

    3. In the absence of the above two, all the opposition parties can join together and petition the Supreme Court.

    The Citizens of the country still need to know the correct Constitutional ruling before going to vote. We have seen during the 52 days illegal rule, the same ” Legal Pundits” who advised Maithripala and Mahinda are advising Mahinda and Gota now. Voters are not cattle, they need the solid direction of the Supreme Court. Laws of the land are supreme to any individual, political party, President, PM or any other group.

  • 0
    0

    “ That power cannot be usurped by any other person or body. Nor can that power be delegated by the President to any other person or body” President didn’t usurp the power or delegate the power to election commission, but with the accent of President, PBJ ordered Mahinda to conduct the election on President’s birthday. The election will take place on that date (Unless UNP rowdies, the ISIS bomb Tamils churches) . Period! What do we want to talk on this date anymore?
    ” The Commission has, in so doing, not only arrogated to itself a power vested in the President by the Constitution, but has, in effect, also amended or varied the Proclamation issued by the President No, Not really. EC(Chaired by Mahinda the Smart Patriot Deshapriya ) never would think to arrogate anything undue against President. Mahinda doesn’t even dream something like that. When Mahinda took order from PBJ for May 28th, it was Ratnajeevan moved, who moved it to June 20th. He thought it would be astrologically safe date for members of the election commission from presidential wreath and from Corona to people and staff. (This is what Colombo Media reported). Election commission didn’t receive any delegation from president, Only Mahinda from PBJ.

  • 0
    0

    “What, then, is the “emergency” that the Commission is aware of and which led the Commission to believe that it could act under section 24(3)? “ Porutha oru Kezhvi! (Heavy weight question). Emergency that I know is anything a president cancels the cabinet meeting, send the ministers home and go for men’s room. This is the precedent set in for emergency, under New King’s leadership. (What is this question? Why would these 8th grade comedians respect any law, whether it is Constitution or not?)

    usurp a constitutional power vested only in the President of the Republic? Here election provisions set for EC is used by big boss to palm off his responsibility of ensuring the parliament he dismissed is reconvening in a reasonable time. Then why this question is directed to EC? If EC had violated President’s proclamation why the president would not worry but only EC has to curse itself, which, something weird like that, even the Tamil poet “Pus Head Chathanar” didn’t do himself ? The soldier was yielding automatic rifle. A child was carrying a water gun. Solider is blaming the child shooting for him missing the target. Why, one of the most learned and able-d constitutional lawyer in the country is demanding the child to be hung until death for shooting the Soldier? Did Mahinda secretly tell Dr.NJ, if he does otherwise, President will finish him off too?

  • 0
    0

    Onetime an employer’s rep was interviewing a candidate asked “Where is Taj-Mahal?” The boy was throwing his hands & legs all over everywhere on the chair and looked somewhere else, replied “Japan”. The interviewer became wild and shouted, “boy sit straight, look at me, answer my question!. If you all say that you could not get job, who in the world going to give you one for your knowledge?” The boy immediately promptly did all what the interviewer said and looked straight at him and asked “Just for a talk, pls, let me say that Taj-Mahal is in Agra. Now, I am getting this job? Sir, why are you wasting my time & more importantly your time? Please tell that you will let me know!, Isn’t it that how a job interview has to end?” “Just for a talk, let’s say Mahinda is not an 8th grader, a lawyer and commission did know that too. So what? Here a man who cannot make a woman a man but has made all men in Lankawe Peadies(பேடி= No gender or a coward) is telling to the commission to take responsibility for misshaped parliament dissolution or take responsibility for refusing that. Then what to do? Didn’t Ratnajeevan ask Mahinda to make EC’s rule that even two members can make decision for the commission?

    • 0
      1

      to stop italic

  • 0
    0

    “Does the Commission intend to summon the new Parliament, Let me ask somebody- Is this really a question? If president’s secretary tells them, EC will commence the parliament on any date. Probably DR.NJ didn’t study Business Administration; this is why! I was listening to the lecture of subject Business Administration. My professor was explaining many things. One time, after long past of regular office hours, his friend a big industrialist, wanted his secretary, who was still waiting on him to get out and get some coffee. She refused! Our professor asked, “What was her thinking? How could she refuse!” ? If PBJ orders, not just summoning the parliament, Mahinda will take the Rapist on India too; why not (Or how could he refuse)?
    Really a question, what nonsense is that called as Constitution in Lankawe.
    Pls don’t waste your blood on unwanted pressure Dr.NJ. We have 2,500 years old history of Wildlife Sanctuary SinhaLE Lankawe. Until imperialist bothered us in 1931, we never bothered about constitution. We know to live. We will take care of us. Pls you do yours! Well wishes.

  • 3
    0

    Dr. Nihal. J. has argued his case from first Principles. A fine exposition of the vexed questions of Law in simple language, which should be understood even by Lawyer and EX; M.P. Udaya Gammanpilla.

    ……The President and President alone, has been vested with the Power to fix the date or dates of the General Election…….
    Fine; No mothers son but the President only. No delegation of this function.!

    The function of the Election Commission is to conduct Free and Fair Elections.[ [Whether Elections in Srilanka has been free or fair is totally a different question! ]
    So, how and under what circumstances did the EC [ To be read here as Mahinda Deshapriya ] fix THE DATE AS JUNE 20th? His way of wishing Happy Birthday to the President?
    Young Mahinda has usurped the Power of the President and in the process ended up as an Interloper!

    There is one other issue on which I must comment. Some of the comments about Prof: G. L. Pieris is far from complimentary; After all, Dr. N.J. and Prof: G.L.P. are married to two sisters daughters of a former President of the Senate late Thomas Amarasuriya. One receives Bouquets and the other Brickbats!
    The fault is not in the Stars but in ourselves said the Bard. With age I am unable to recollect the exact words and the Play, Act,Scene etc

    • 0
      0

      The fault, dear Brutus, is not in our stars, But in ourselves, that we are underlings. (Julius Caesar, Act 1, scene 2).

    • 1
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      Thanks for telling us about the marriages, Plato. Always good to know these things.
      .
      The thing about Prof. GLP is that it’s so disappointing. He’s not a man who had to be the lackey of the Rajapaksas.
      .
      As for the quote – it is very easy to google a few of the words, and you’ll get it. However, I know Julius Caesar pretty well.
      .
      It is quite early in the play, Act One, about Scene 4: Cassius “fashioning” Brutus:
      .
      “The fault, dear Brutus, is not in our stars, but in ourselves, that we are underlings.”
      .
      Let me test myself:
      .
      https://literarydevices.net/the-fault-dear-brutus/
      .
      Even earlier – towards the end of Scene 2.
      .
      The full text is available – in many formats – as Plato knows well enough!

    • 0
      0

      I am not calling for an election or Calling back the parliament because this is an issue for Lankawe. We want only Singapore – Malaysia deal, not even India – Pakistan. After setting aside my problem, I can join in the problem you all are discussing. If one take the lizard to sophisticated mattress, it is going slip underneath to hide. So what is the point one solve this problem by calling back the parliament or by conducting election. What haapnded when everybody wanted to have Old Royals arested when they started a UN-constituional coup.

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    This article has not addressed one more question to be answered by the EC. Are the Nominations accepted by the EC on 17,18,19 March 2020 VALID? All those three days were “Declared Holidays” and accordingly a Gazette Notice was issued by the Ministry of Public Administration. In terms of the Elections Law, the nominations have to be accepted “During Office Hours”. EC office remained legally “CLOSED” and no officer, including the EC members could work. This question was raised by a representative of a political party at a meeting with EC a few days back. The EC immediately wrote to AG seeking advice. The AG’s reply was: “Act according to the Laws”. Now what is the “ACTION” that would be taken by EC? The EC has to provide an answer. If the answer is “NOT VALID”, then everything comes back to “ZERO”. If the answer is “VALID”, then, still that decision would be challenged in a court of law. EC – What is your answer?

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      Thanks, Simon.
      .
      I didn’t see your carefully and clearly written comment when I stated almost the same thing – not as well.
      .
      Let a political party file action in the Supreme Court.

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    I heard this on Rupavahini news as well:
    .
    http://www.adaderana.lk/news/63341/ec-has-to-follow-established-procedure-on-general-election-ag
    .
    The Attorney-General implying that it’s all right the Election Commission accepting nominations on a Public Holiday. It is the political parties that should file action in the Supreme Court, so as to get all nominations made in March 2020 invalid. Why do these guys come forward as out champions if they can’t do that much?
    .
    Don’t readers remember this?
    .
    https://www.colombotelegraph.com/index.php/was-the-presidential-election-free-and-fair-when-colombo-returning-officer-called-sajith-premadasa-the-son-of-a-donkey-asks-prof-hoole/
    .
    Must all this be left to brave Professor Ratnajeevan Hoole? Many of us are convinced that Gota’s citizenship was not right when he was nominated for President. Even after Professor Hoole wrote this article, not one of the 34 losing candidates commented on it. See for yourself, how many times I have asked that candidates say something. A person like me stands to gain nothing.
    .
    The Rajapaksas manipulated the nominations in such a way that even if the elections are held in 2022 (quite possible) or 2025 (that is far fetched) the divided UNP will have two groups contesting: Ranil’s and Sajith’s. Neither has much appeal for me, and I may not vote for either.
    .
    But this manipulation must not be allowed. Plain unfair!
    .

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    All these questions raised by the author only points out that the Elections Commission has exceeded its bounds. The author points out very clearly that the NEC can accept nominations and then decide on the suitability of conducting elections while prevailing conditions being the same. Clearly, the NEC assumed the unsuitability based on its thinking and only very latterly did it ask for medical opinion after issuing the original gazette notification merely stopping the hold of elections. If a so called independent Commission exceeds its bounds must the ordinary citizen be without a remedy? It is the talking point amongst I know that NEC stands for No Elections Commission. Ordinarily such a Commission must be reconstituted immediately. But where is the provision for it?

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      Dear Good Sense,
      .
      I had always thought that you had named yourself well, but I find this comment of yours disappointing. We must at least show those who act irresponsibly that even if helpless, we understand what is happening.
      .
      “No Elections Commission” is a cheap jibe. An election must only be held if people are in a position to think clearly, and it is best if the date cannot be moved to suit special interests.
      .
      The Coronavirus Pandemic is something that is serious, and totally out of the blue. And I think that we have mishandled it. The Economy is in tatters. If we had all these curfews we should have had some other strategy to some day end it. We know that Sri Lanka is most unlikely to find a vaccine, but we should have been testing much more. You and I, I’m sure are eating enough, but others are starving, and will have very low resistance when they finally, and inevitably meet the virus. As for us, Death will claim us, too. Most who comment are elderly, or actually old.
      .
      That the Commission is no longer a United Body is obvious to all. It is Deshapriya who has been doing wrong all the time. Don’t blame the others.

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        Dear Sinhala_Man, Are you saying that Prof. Hoole and Abeysekara are lackeys of Deshapriya? That is very hard to buy. All three of them, however experienced and eminent must accept the responsibility if the implications of the Questions are valid and serious. The author of this Article clearly points out that the blame should go to the three esteemed independent members of the Commission. Even if they don’t resign, someone must call for their resignation.

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          I agree that there is collective responsibility in these matters.
          Before demanding resignation one should seek explanation for serious charges.
          Right now replacing this Election Commission with another (which will be by the President I suppose) may not be the wisest thing to wish for.

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            Dear SJ, Yes! There is a principle where the accused must be heard. But they are above all that Nobody can dismiss them, excepting the courts which once did for Dr. Jayasundara. If they don’t care a tuppenny for Dr. Jayawickrema’s questions by not answering at least on a moral basis then they would not answer any body elses call for explanations because they cannot be touched by anyone, NOT EVEN THE PRESIDENT.

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    I am not calling for an election or calling back the parliament because that is an issue for Lankaweyans, laymen or learned-s. I have no moral or constitutional sovereignty to insist on anything for Lankawe. We want only Singapore – Malaysia deal, not even India – Pakistan. After setting aside like that my (mental) blockades, I can join in the problem you all are discussing.
    If one takes the lizard on sophisticated mattress, it is going slip underneath it to hide. So what is the point in one solving this problem by calling back the parliament or by conducting election? What happened when everybody wanted Ranil to have Old Royals arrested and punished for them starting a un-constitutional coup. He saved Old Royals by using the ISIS team of the UNP cabinet to bomb Tamil churches and thus brought Old Royals back to power. Now he is after them for National Unity Government. So how one is going get the Wildlife Sanctuary SinhaLE Lankawe out of the deep well (its problems) it willfully jumped into and refuses to get help? What can even Allah or Jesus or Siva do for this when Buddha had wished Lankawe to be like this until he comes back after another 2500 years?

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    Dr.NJ saying it was EC’s fault for having fixed the election date (as June 20th). Well, we all know Mahinda Patriotic Deshapriya wrote to President to go, seek consultation of SC. Isn’t it that when PBJ pulled out his gun & started to fire at Deshapriya on the public road? Thank God, the Smart Patriotic was at “work from home”, not at any Swiss Hotel, so no high expenses. It was the Namboodiri P.K.B set the auspicious day of May 28th. Mahinda only changed it to be on the Birthday of Our Lord, June 20th. How come Dr.NJ is not ready to make a phone call to P.K.B in India, ask him how dared he was to set the election date for Lankawe, surpassing our Mighty King’s authority. Why is he is picking on poor Mahinda the Smart Patriotic Deshapriya?
    There is nobody better to tell the mass than Dr.NJ that EC, by setting the election date to June 20th, had cut the branch it was sitting. If the parliament is not dismissed then there is no need for an election; period. By setting June 20th, EC invalidated the parliament dissolution proclamation and thus EC’s election June 20th. If it is right that EC violated Dissolution clause, it invalidated parliament dissolution and closed the door for an election. Dr. NJ has done his job well, above

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    Remember, by the fault of EC, the June 20th is only a blank date on the calendar; legally and constitutionally, nothing special on that day. So if NJ has vacationed the election Commission’s job like that, then why is he going after EC with five questions? Is he feeling Olympic masculinity in hitting a dead snake? Just Follow Kalithasan’s example: ‘Sharngarava took the hand of Sakunthala and gave it to Dushyanta and said ”O majestic King, thy is this enormous wealth. A search even in the seven seas & seven worlds will fail to discover the mountainous treasure hiding under chest case of her. Thus is her noble heart. She is your property; you may accept, adore and enjoy your life with her or reject her; it is your judgement; we are forest dwellers, she grew up among us soft like the flower hung on the creeper vine; clear like a crystal pearl hidden inside the stomach of the shell. Missing you, she missed eat & sleep. So we brought her to you. “ ‘This is what Mamuni Sage Karnva told us to tell you. Our duty is over. Now we return to Ashram.’ Dr. NJ, Uyangoda and other Karnava’s disciples have to take the parliament’s hand and give it to The King and tell him, King, our duty is over as the learned members of the Sinhala Buddhist Society. After this, it’s your wisdom to guide you on the path of virtue!

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      to stop italic

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    Dr.Jeyawickrama
    The Election Commission – Five Questions That Require Answers
    The Constitution is the supreme law NO You are wrong.
    The Constitution is our supreme law. It means that every other law should be read subject to the provisions of the Constitution. No legislative, executive or administrative act can override the Constitution. No power vested in any person or body by the Constitution can be exercised by any other person or body
    *** You so called intellectuals I must admit mostly from the Majority pop up every now then and talk about Constitution as if it exists. My friend it ceased to exist when Gotha the CRIMINAL decided to throw his hat. He lied his way to Presidency against the Constitution which barred a Foreigner and he is still an American . He has no Legal or Moral right to Govern.
    Look at his achievements under his reign of terror which even you cant deny.
    1) Forced Iqbal Athas to flip his hat.
    2) Defied Supreme Court and Pardoned a Convicted Killer.
    3) Now Forced AG to side with him.
    4) Supreme Court Next
    No need to ask the Supreme Court for its verdict . It will just Rubber Stamp AG.
    At a time when Sri Lanka needs the help of the rich Countries Gotha is a liability.

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    Nathan.
    Sinhala-Man.

    Thanks for enabling my comment with the actual quote of the Bard.
    Way back in 1991, I bought The complete works of Shakespeare @ Foyles the worlds biggest book shop- weighed 3 kilos cost 1 STERLING POUND! about RS.100!!!!! then.

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    There is one wording problem in the election law when it said the Election Commission can defy the date of the election for certain area and delay election, due to emergency. Draftsmen here meant only natural disasters like circumstances, but called it as emergency. Elsewhere in the law, Emergency is a situation dealt by President and Parliament , exclusively. Here because of that wording EC changed the date of election for the whole island, without parliament or president declaring emergency. I think that part needs a correction; Emergency has to be about protecting people. Emergency cannot be handled by EC under any circumstances. Medical emergency, how big could it be must be handled by medical team and the troops use must be limited to logistical needs. Emergency must be clearly defined in Constitutions, as it has been used for the past 75 years.

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      ******g
      “There is one wording problem in the election law when it said the Election Commission can defy the date of the election for certain area and delay election, due to emergency.”
      Defy the date?
      If that is the wording, its is truly worrying.

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        S…V…M…S.
        Don’t worry I know you did not read Dr. NJ’s essay. But there is no pint in me asking you to read to get the meaning of that word, because even if you read, you will get nothing.

        All what you dream, think, hallucinate….. is what you can “Alavalavu” in the men’s room. You mind is empty other that stuff! Sorry man for you state.

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          *a***** the great defier of dates (and rules of language),
          This time it is more than meaning. Imagine the implications!

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            “Imagine the implications!”

            ******y what kind of posses you give to market your boss’s hallucination stuff. With Amude or not even with that? good sales going, seeing those poses?

            (Check your dictionary, Your hallucinations only in the Kottle market that staff. Anything about law is words strictly get interpreted. You can bray for yours, you cannot understand the essay, so the comment)

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    Thanks Nihal,

    It looks obviously this is a constitutional problem. Yes it is ,but there are many things behind this saga. This is about humanity. Be a human and being a human is two things. Fittest of the survival is the key throughout the world even though we are being told we have equal rights. Equal rights are totally disregarded all the section of the society. If we take the family father has more power ,next mother and it go down through elder brother or sister. All religion give priority and respect to male . Women are not equal in religion. Further there is a order in priesthood. We are in a rat race no human values are considered. Everyone want to be the first by hook or by crook. What is happiness, contentment and well being is totally misunderstood. This is the background of our politicians.We select unsuitable,incapable and ill will politicians to govern us due to the poor electing system. Therefor this kind of situation is unavoidable.

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    I refer to my comment dated 4 May, wherein the legality of accepting nominations on the three days, i.e. 17,18 & 19 April was in question. The Chairman, EC referred this to AG for a ruling. Now the AG has replied:- “I have gone through the provisions. It is observed that YOU HAVE ACCEPTED (emphasis by me) the nominations. Accordingly, hold the elections in accordance with the law”. What does it mean by “You have accepted nominations”? What can I do now? So bear it for yourself and hold elections. AG is now passing the onus of bearing the responsibility of that decision to Chairman EC. The EC should have taken into consideration the Law and Rules pertaining to nominations before accepting them or seek an opinion from the AG. I hope this too would be placed before the SC on May 11, when the petition challenging the date fixed for election is taken up.

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    I must be honest I haven’t read the Article and I am commenting on the Title because for me it is a non starter. The Writer is guilty of starting a debate which has no legal meaning and some commentators have taken it to their hearts . Gotha is a Child born out of wedlock. He is an Illegitimate President.
    In then eyes of the World he is CRIMINAL and to be precise an American CRIMINAL proclaimed as such by the State Department ( by declaring Shavendra who was Gothas loyal servant a War Criminal) ) and by the Californian Judge. MR was appointed by a President who had no Legal or Moral right to hold that position and that came about because RW abdicated in that sense he was a PM by default.
    So what are we talking about Constitution in the following terms
    “ The Constitution is the supreme law
    The Constitution is our supreme law. It means that every other law should be read subject to the provisions of the Constitution. No legislative, executive or administrative act can override the Constitution. No power vested in any person or body by the Constitution can be exercised by any other person or body.
    Constitution was Flouted from the beginning.
    Writer do me a favour. Just say I got it all wrong from the beginning and save the Agony of people who respect “ RULE OF LAW “ and SEPERATION OF POWERS .

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