10 August, 2020

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The General Election Conundrum

By Nihal Jayawickrama

Dr. Nihal Jayawickrama

A great deal of confusion appears to have been created following the proclamation issued by the President on 2 March 2020 dissolving Parliament, amid the global coronavirus outbreak, and fixing the date of the general election for 25 April and the first meeting of the new Parliament for 14 May. The confusion appears to have been compounded by the request made to the President by the Election Commission that, in view of its inability to hold the general election on the date specified by the President, the latter should seek the advice of the Supreme Court on how to proceed in the matter. The confusion has been further compounded by the reply of the Secretary to the President that it is the responsibility of the Election Commission to fix a new date for the general election and that, therefore, the question of a reference to the Supreme Court does not arise.  It is unfortunate that neither the Election Commission nor the Secretary to the President appear to have paid any attention to the relevant laws governing this matter.

Under Article 62 of the Constitution, unless sooner dissolved, the Parliament continues for five years from the date appointed for its first meeting (which, I believe, was 2 September 2015), and the expiry of that period operates as a dissolution of Parliament. However, under Article 70 of the Constitution, the President may dissolve Parliament at any time after the expiration of four years and six months from the date of that first meeting. Accordingly, acting under that Article, the President by Proclamation dissolved Parliament on 2 March 2020.  As required by Article 70(5)(a), the Proclamation fixed 25 April as the date for the General Election of Members of Parliament, and May 14 as the date of the first meeting of the new Parliament, since the Constitution requires the date of the first meeting to be not later than three months after the date of the Proclamation dissolving Parliament, i.e. 2 June 2020. This signifies a fundamental principle of democratic governance that the country should not remain without an elected Parliament for a period in excess of three months.

If, in view of the indefinite 24-hour curfew that was imposed in many provinces on 20 March, and still continues to this day (11 April), the Election Commission was of the view that it was unable to conduct the general election on 25 April, the proper course for the Commission would have been to inform the President accordingly.  It made no sense whatsoever to request the President to invoke the consultative jurisdiction of the Supreme Court and to seek the opinion of five Judges of that Court on how the conundrum should be resolved. The President who made the Proclamation is the only authority vested by law to resolve this issue.  He has two options. One is to review his decision to order the premature dissolution of Parliament and revoke his Proclamation in view of the global pandemic which has struck Sri Lanka as well.  The other is to amend his Proclamation by fixing a date in the final week of May for the General Election bearing of mind that the first meeting of the new Parliament cannot be later than 2 June.

The reply of the Secretary to the President, as reported in the media, demonstrates an incredible lack of understanding on the part of his legal advisers not only of the relevant constitutional provisions, but also of the law relating to parliamentary elections. He is reported to have informed the Election Commission that “fixing the poll is the responsibility of the Election Commission”. He is also reported to have informed the Election Commission that it had “failed to act under section 24(3) of the Parliamentary Elections Act and published another date for the general election”.

Section 24(3) of the Parliamentary Elections 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”. It refers to unforeseen circumstances in “any electoral district”. Such circumstances could include a flood, a cyclone, or even the prevalence of a serious infectious disease in that district. The authority granted to him is to change the polling date in the affected electoral district.  Section 24(3) cannot surely be interpreted to mean that the Election Commission has the power to change the date of the General Election as proclaimed by the President. The power to determine when to dissolve Parliament, the power to determine the date of the General Election, and the power to decide the date of the first meeting of the new Parliament are powers that are vested in the President by the Constitution and cannot be delegated to, or arrogated by, another individual or body.

It is important that those in positions of authority today, whether driven by political expediency or lack of proper understanding, do not create precedents that are unconstitutional and contrary to law. When the Secretary to the President directed the Election Commission to act in excess of its powers and usurp the President’s constitutional duty and determine a new date for the General Election, it is pertinent to ask whether he was aware that under Article 104A of the Constitution, no Court has the power or jurisdiction to “entertain or hear or decide or call in question on any ground and in any manner whatsoever any decision, direction or act of the Commission made or done or purported to have been done” under any law relating to the holding of an election. It is an invitation to a future Election Commission to override a future President’s proclamation fixing the date of a future General Election and substitute a new date perhaps more favourable to an opposition political party.

It has been suggested in some quarters, obviously in error, that the President could act under section 113 of the Parliamentary Election Act. That section states that “If at any time after the President has ordered or fixed the date for an election, it is shown to his satisfaction that in any electoral district owing to any cause whatsoever no election has been held in pursuance of such Order, he may at any time by notice in the Gazette issue another Order that an election shall be held in that district.” This section relates to certain transitional provisions in the Constitution concerning the “First Parliament”. When a vacancy occurred in that Parliament (which was elected in 1977 under different electoral arrangements), and the secretary of the relevant political party failed to nominate a member to fill that vacancy within the prescribed period as required in the transitional provisions, the President was required to “Order” the Commissioner of Elections to hold an election for the relevant electoral district. An “Order” is different from a “Proclamation” and has no applicability to the current situation.

Commonsense appears to dictate that it would be extremely irresponsible, during the current global pandemic, when several provinces are still under an indefinite 24-hour curfew, to contemplate holding a General Election within the next few weeks, in 22 districts, to elect 225 members, preceded necessarily by intense canvassing. The remedy lies not with the Election Commission but with the President who alone has the power to revoke any Proclamation he has already issued, and to exercise his power of dissolution, preceded if necessary by the exercise of his power of prorogation, at a more appropriate time when the waves of Covid-19 have finally receded.

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Latest comments

  • 8
    0

    One reads the expert opinion of a man learned in the law and constitution. Then you go down and expect to read comments of similar seriousness that may expand understanding. Alas… What a waste of time.

    • 3
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      Dionysus, i truly am in perfect agreement with you on this.

      Matters extraneous to what is being discussed reduces the standing of this forum. The Editor has to use his editorial license far less leniently than at present.

  • 15
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    Legal experts can write good articles like this one. However, politicians have scorn for the experts including health experts or economists etc and utter contempt for the people who vote for them. Hence, elections will be held as soon as the general “curve” is flattened for covid-19 (however unrealistically or prematurely) and will appear as saviours (yet again) in the eyes of the fools who elect them..

    • 3
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      Those conversant with the subject have quoted the same chapter and verse in support of their stance. Consensus is same because wording in the relevant articles is unambiguous. So how come a differential interpretation? Tendentious reasoning is a tempting inclination that proximity induces. Why retract when nearness safeguards?

      It is therefore likely that the roller will roll through. “GENERALS AS GOVERNORS AND BRIGADIERS AS GOVERNMENT AGENTS”, in the public domain, is not childish prattle for a fool’s paradise. It is food for premonition. Greater the unsettlement, better for…?

  • 19
    1

    No point talking UNP / JVP /SLFP / LSSP/ CP / MEP have let down the people.

    All the above have not been able to show some credibility as a political force that could be an alternative to the SLPP.

    If the Rajapakshas manipulate the general elections, can these political parties stage a protest?

    SLFP/LSSP/CP and MEP have taken the easy route and joined the SLPP even though it means that they have to turn a blind eye when their fundamental principles are openly flouted.

    The UNP and JVP are run by “patholayas’” so we have been left with the Rajapakshas’ whether we like it or not.

    And now there is a very real possibility of this turning into a military junta under Gotabhaya.

    The lack of leadership and commitment on the part of the opposition is the reason for this pathetic situation.

    • 6
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      Dear Friends,

      Part 1

      the current writer is a SENIOR professor in Law and also a well known international constitutional expert. I thank him for his valuable article. No doubt that will help many to get up from their long slumber. His article should be food for thoughts to all those who respect democracy which was protected by our great politicians such as Mrs B. Europeans and americans evoke our island as one of the oldest democracies in asian continent. Why should the people today let it be snapped into pieces by a bunch of idiots, that have been twisting almlost everything in favour of their political surivival? They have been making every effort to crush the buds of opposition’s rise. Then only they could succeed their hidden agendas in the backdrop of CORONA crisis. Today, they are on self-glorifications, and mislead the nation feeding them with innacurate information based on COVID-19. Even if the brother DUO, being that stupid to realize the real danger oft he SPREAD oft he deadly virus, fully failed to close dow BIA as of end of February for the arrivals from Europe. As an island nation, we are naturally protected, if the bugger duo had the brains to react accordingly, but their SINISTER agenda further focusing on holding General eleciton, let more of infected PATIENTs entering in tot he country. Can you imagine ?

      tbd

      • 3
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        Part 2#

        But yet today, their self-glorifications and fake achievements etc are in the LOCAL media through their biased channels. Unfortuantely, SIRASA TV is also tamed by them as of today. Media freedom has been reduced to the days people experience it by end of 2015.
        If talking about our past, those days, international communities evoked the country by the name of Bandaranayake. This I myself experieced in the early 90ties. And today, our country is known to the world as the indian ozean island, which is caught by a group of uncultured, uncivilized thieves, by name Rajapakshes. This picture was even BRANDED by RAJAPKSHE brutaltiies displayed by their52-day FAKE government by the highly abusive manner they physically attacked then SPEAKER -79 year old-throwing CHILI POWDER and chairs or anything that could kill him on the spot. All these are now circulating as VIDEO clips to interntional community. So nothing is out of their memories. Latter is further identified as the leaders of „number one CHINESE debt trap countries“ in asian continent. The architect of COVID-19 SARS COV2 virus, the CHINESE chose any CRIMINAL like stupid leaders across the world for their so called CHINESE development projects, which they plan for their future survival.
        Immediately, after I moved myself out oft he country to Europe in late 80ties, senior professors questioned me what nationality I belong to. Term srilanka was not so familiar tot hem, but the country of Bandararnayakas was reechoing in their voccabulary. Most oft hem had a greater respect and dignity to our leaders. Unfortunatley, all these is now taken every from Rajaakshe bastard. Their names are brande das LYBIAN friends, money launderers, Central Bank Robbers, giant state fund abusers, Rapists, and multi killers. Not just tamils only but also sinhalayas are among the victimized srilankens in the lists of the human losses by Rajapakshe rule sofar.

        Tbd

        • 4
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          Part 3

          Right these days, many of us being locked down to our own households due to COVID-19 crisis, if not all, atleast some of us have plenty of time to rethink about our recent political crisises. So please take your precious time to reithink and what would be if the nation would be ruined by the total ignorance of the current stupid leaders. So please why not you guys use your time for thinking properly ?
          For good or bad luck, the retinue of Rajaakshes consist of few PhD holders, few medical doctors, few lawyers, but a much larger portion of thugs, rascals, contract killers, high criminals, rapists, money launderers, Child molesters, chain draggers,Viagra testers, self-proclaimed political analysts, artists, above all, skin heads wearing monk’s costumes and cathelic preists of Ranjith malcom. All these groups of people are scattered across the country and even if some of them would rape innocient child girls,down syndrome children, their party leadership would not utter a single word about the crime but cover up as was the case with one PS leader went missing after he was redhanded to have raped a 16 year old school going girl child in Akmeemana Galle (Pushpakumara ALAS Raththaran, Witch doctor, PS leader of SLPP) . So all these men and women could be seen in that 69 of voter eligibles.
          .
          Retinue of ANTI Rajaakshes consist of growing number of educated people – a much high portion of incl. PhDers, Doctors, lawyers, higher academics,financial experts, teachers, high qualified graduates, a portion of educated respectable buddhist monks, other relgious leaders and civilized people that would not abuse their filthy mouth as ist he case of SLPP supporters. So the difference between these two groups are sky-earth and that is why anti-Rajakashes stay mum today. Decent people would never to covet but stay away being unable to do the due.

    • 5
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      Wimply Kid, The JVP has shown their credibility on several occasions when the country faced critical junctures such as the amalgamation of the North and Eastern provinces though the voters in this country are capable of forgetting anything at all in a fortnight. Their MP’s are among the most efficient top 15 parliamentarians in the legislature during their entire tenure in Parliament according to surveys by Citizen.lk. Do check out Derana 360 of the 16th March to ascertain for yourself the credibility of their leader.

  • 12
    1

    Nihal Jayawickrama

    *** What is the point having an Election when there is nothing to Govern. Have you not given it some serious thought which amounts to recklessness that Sri Lanka is Bankrupt. Gotha , Mahintha combination will spell disaster. The only Country that can you bail you out to feed Kanchi to your people is India but that will come at heavy price. God has finally punished you lot.

    • 3
      18

      We don’t want Election at all. The majority only needs Gotabaya. He the man who completely destroyed LTTE and Leadership of LTTE. Bullshit Democracy. Just a word in the English Dictionary.

      • 0
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        N.Perera,
        Do you really think ltte completely destroyed. Don’t kidding man..Poor Sri Lanka

    • 4
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      Mr. Nihal J: ” What is the point of having an election when there is nothing to Govern.”

      This is what educated people may point out. The hidden agenda of G O T A is to get a 2/3rd
      result by hook or crook, engineered by US Party Secretary (as the elimination of the previous EC Dayananda is still not brought by even by a single person in SL) which keeps the present EC shivering under GOTA`S foot to ensure that 2/3rd. This will immediately follow with amendments to the 19th providing inter-alia for a life-long immunity to any SL President. Gota has ensured his retirement in California – he does not want to miss the chance – like a drowning man & a floating straw. Who in the Public Service will not support the underhand work duly tackled ahead by the Forces?

  • 11
    1

    Gota before dissolving the parliament you should have thought about this you were greedy for 2/3 majority what a pity you have put the country in a whole you should have closed the airport and lock down country end February after the debates held in parliament in February but you decided against it and whole nation is suffering due to your stupidity will see how you are going to solve the constitutional crisis created by you ???????

  • 0
    0

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  • 4
    0

    For all the Gotha Lovers

    Evidence if needed why Gotha is in a rush to reopen

    This is just a microcosm


    Apparel businesses near liquidation
    By Sunimalee Dias

    Sri Lanka’s apparel factories have stopped their machines with no orders and with no hand-outs from the government, they are facing stiff competition from their counterparts.

    “None of the companies that has asked for loans from banks have been successful in obtaining a loan,” Sri Lanka Apparel Exporters Association (SLAEA) President Rehan Lakhany said.

    The industry has requested the government to allow them to suspend payment of EPF/ETF for a period of six months; provide at least 30 per cent of the apparel industry workforce with three months’ salary as a means of sustenance for April, May and June.

    More are nearLiquidation or have alrady Closed such as Tourism. Gotha Legacy ” Kaput”

  • 6
    0

    Thank you Dr. Jayawickrama for a well written article which is very clear to a normal citizen like me.

  • 2
    0

    Step by Step next virus will be fully created in labs .

    Very powerful, but all countries will be prepared well and will responding quickly and quarantine the people.* (min deaths)

    But this virus will be controlled by future One World order members .

    Once they have locked everyone down, their proxy and assistants from a each nation will be implanted with a chip and once the 1st phase is Done, the entire world will be controlled by one world order masters using Artificial intelligence , from drones , driveless vehicles etc.

    They will do all they have to break the human mind and most will give up their religous beliefs,( stuck inside the house for years is not like now , we do know how it is ),

    So they were lucky to have a free trial with Corvid 19 or it was a wakeup call For us all.

    US President wanted to go further did not care about life , refused to .lockdown and faked the economy excuse and wanted people on the streets but backfired and they have the highest number of deaths.

    However those who give in will.be enslaved through the chip, those who refuse will remain inside and rot to death .
    .
    Mostly Jews , Christians and Muslims will refuse the chip.

    Next is too sensitively religous .

    All three have almost the same c9ncept for the final episode except Jews .

    Final episode where Muslim tradtion is concerned it agree 100% with Christians .

    Good luck for all.those who are 1 year old to 30.

    In 30 years the Virus shall be sent out.

    No space on earth will be spared not even the deepest forest of Amazon

    Stay Awake !

  • 0
    0

    So what would I do if am alive and young ?

    If I am.a religous Jew , Christian or Muslim ?

    I would say my prayers and then give myself up for the chip.to be implanted and live as long as I am permitted to live, because peoples age and life leangth also will be determined by the One World order DONs they will.be using an extremely sophisticated Super Computer .

    I assure you God nor the entire universe will not interfere until the end of the episode .

  • 6
    0

    The President has claimed that he has the advice of Romesh De Silva and Manohara De Silva et al. The counsel who defended that Moron Sirisena who brought back the Rajapase cabal for 52 days.

    We are told schools will reopen on 22th May and the Universities on 18th May. All these moves are to show that
    the Corona Virus has been brought under control!
    There is of course no quarantee for a 2nd wave of the Virus. One thing is certain.There could be mass scale quarantine.
    Elections and the Constitution would no longer be an issue!

  • 2
    0

    Correction.
    It should read as 11th may.

  • 3
    0

    Section 24 (3) says under special circumstances the EC can change the dates of any electorate the President chooses. If the President declares the election to be held on different dates in different areas, then under this clause the EC will have the authority to change the date of the election as he is not changing the election date of the entire country.

    It is idiotic to state no court has the authority to rule over the decisions of the President, which dictatorship is this author living? Even in Russia this cannot happen.

    It is also interesting to note that such a “so called pundit” ( I use so called as his stupidity and subservient nature to Rajapakses Doctrine) in this article shares the view that the President is above any Court or Law of the Land! Such idiots only have ruined the country.

  • 1
    0

    Buddhist,
    Here is no case. EC only asking to consult SC on an unguided matter in the constitution. Under all circumstances, all undecided matters will be decided by president, by Article 4. But, here is a knot both ways.

    Article 4 leans on president side. But EC feel the election cannot be held upholding voters sovereignty, such early, because unforeseen natural disaster has struck. EC Chair has the final saying in election matters. That is why SC has to come in. It cannot go as the clash of the titans. Consultation has to be binding when the supreme court consultation is received. Because there is no other way. Nobody should be contesting SC’s consultation. It has to be the final verdict.
    If the consultation goes good, postpone the election until August and reconvenive the parliament. If needed further time, parliament can call for referendum to extend its five year term. If consultation goes bad, conduct the election on president’s date.

  • 4
    0

    I don’t know the details of constitution. Today, there is a confusion about the constitutional status of conducting election. There are number of arguments and interpretations by various persons including the so called constitutional experts by both sides of the political opponents. What is wrong with getting an opinion about getting an opinion from the Supreme Court by President. President is not going to loose his post by asking the Supreme Court if he respect the independence of judiciary. Election should be held when all the citizens are ready to vote and the environment is suitable for all.

  • 0
    1

    In democratic country elections should be free and fair Gota won the last president elections because it was a free and fair election we want same to continue who wins the elections is irrelevant.

    Gota respect the law of the country respect the constitution it is not a piece of shit learn to respect the judiciary

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