The President in dissolving Parliament on March 2 and setting a new date for polls followed all the rules. Having set a date it was left to the Election Commission to conduct the polls. Yes, the country was facing a global pandemic. But the country also weathered 30 years of terrorism and continued to hold democratic elections whatever the odds. All of the constitutional hiccups could have been amicably addressed without having to be bickering over clauses and dates if political parties, politicians and even members of independent commissions were mature enough to arrive at a consensus. However, their actions show that none of them are interested in the citizen voters but simply to safeguard their political careers or satisfy those they are aligned to.
Rules followed by the President
• Gazette notification declaring Parliament dissolved ONLY AFTER the stipulated four and a half years as per 19A – Article 70(1)
• Gazette notification gave date for islandwide elections (April 25)
• Gazette notification gave nomination period (March 12 to 19)
• Gazette notification gave date for convening of New Parliament
All steps the Constitution required the President to abide by were taken.
The next part was in the hands of the Election Commission (EC)
March 12 – The EC began accepting nominations
March 19 – The EC closed accepting nominations
March 19 – The EC postpones the April 25 elections without announcing a date but says a new date will be announced on March 26 after consultations with health services
March 20 – The EC issues Gazette 2167/12 Parliamentary Elections Act Section 24(1) paras a) and c) but not a) to d)
March 21 – The EC issues Gazette 2167/19 postponing the April 25 elections and declares a date 14 days after April 30 will be given as new date for elections.
March 31 – The EC writes to President stating that the new Parliament should convene on June 1 citing elections could be held on May 27 or 28, 2020
April 1 – The EC writes to President to consult Supreme Court on new election date
April 20 – EC Gazettes 2172/3 notifying Parliamentary Elections to be held on June 20, 2020
Where did the Election Commission err?
• As per Section 24(3) of Parliamentary Elections Act of 1981 subsection 10 – does the EC have a mandate to cancel an island-wide election or only to cancel election in an electoral district? Did the EC have the mandate to cancel the island wide election set by the President for April 25?
• If the EC can only cancel an electoral district, EC is by constitution also bound to declare a new date 14 days from the date he cancelled (Mar 19) as the new date for elections in that electoral district. Why did the EC not do this on March 19? The EC did not specify any date when he cancelled the April 25 island wide election declared by the President
• If elections had to be held 14 days after the postponement date as per 24/3 of Parliamentary Elections Act – why didn’t the EC give a fresh date when he postponed the elections on March 19? http://www.dailymirror.lk/breaking_news/No-General-Elections-on-April-25...
• On March 19 the EC at the press conference on cancelling the April 25 elections said he will give a fresh date for polls on March 26 but the EC did not, nor did it give a reason why the EC was not giving a fresh date on March 26. http://www.asiantribune.com/node/93497
• Even by March 21, the EC in its gazette does not give a date but says a date will be given 14 days after April 30. The EC did not declare a date. However, again the question of ‘can the EC give an island-wide date for an election arises’.
• Why did the EC write to the President on March 31 claiming that Parliament has to convene on June 1 and that elections could be held on May 27 or 28, but the very next day write another letter to the President asking him to seek advice of the Supreme Court?
• If the EC has a mandate to declare island wide election, why should Section 10 of the Parliamentary Elections Act stipulate the EC with a maximum of seven weeks from the closing date of nominations to declare a new date?
• As per Section 10 of Parliamentary Elections Act, the EC has to set a date not less than five weeks and not more than seven weeks from the closing date of nominations. If so, can the EC set June 20 as election date?
• April 8 – President’s Secretary replying to the EC informs that it is the duty of the EC to announce a fresh polls date. The Secretary also states that Consultative Jurisdiction (Article 29) does not apply and the President does not wish to interfere in the duties of the EC. The Secretary also highlights shortcomings in the EC’s Gazette notification of March 20.
• What is the explanation the EC can offer for issuing Gazette 2167/12 on March 20 citing only Section 24(1) sub paras (a) and (c) but omitting sub paras (b) and (d)
• April 20 the EC gazettes that elections will be held on June 20 but does not explain how the EC arrived at this particular date.
The challenges
• Parliament requires to be convened within three months from the dissolution of Parliament – the date given by the President was May 14, if elections were held on April 25. With elections not held on April 25 and the EC declaring elections for June 20, the date given by the President to convene Parliament cannot be met. The situation that has arisen is not the fault of the President.
• The 24/3 of Parliamentary Elections Act says ‘ANY DISTRICT’ this does not IMPLY ALL DISTRICTS” so it questions the mandate of the EC to cancel elections in ALL DISTRICTS as he did on March 19 by cancelling the April 25 election date set by the President.
• Covid-19 – March 11, the first Sri Lankan patient confirmed/ March 28, the first death and April 8, the seventh death. On March 19, – the day EC postponed elections indefinitely Sri Lanka had no Covid-19 deaths and only 53 confirmed
cases. By April 8, Sri Lanka had seven deaths, 140 active cases and 42 recovered. The country was not facing a medical emergency.
• As per Gazette dated March 2 announcing the dissolution, the new Parliament had to meet within 90 days or before June 2 – that it is unable to, is not the fault of the President but the many hiccups by the Elections Commission.
• Section 24(3) States: Where due to any emergency or unforeseen circumstances the poll for the election in any electoral district cannot be taken on the day specified in the notice relating to the election published under subsection (1), the Commissioner 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 in the Gazette”. This means EC cannot declare island-wide election using section 24/3 but he can use this provision to carry out a staggered election.
• Can Sri Lanka have an election?
The most unusual scenario is that the ruling party wants an election but the Opposition doesn’t and is pulling every trick possible to delay the election.
They can only do so till Aug 2020 when the 5-year term automatically becomes null and void. However, with the dissolution of Parliament on March 2, the Old Parliament technically does not exist. Given that Sri Lanka’s Covid-19 situation is well under control with no ICU patients, no patient in serious condition and the intelligent services confirming they have identified all community clusters and there has been no Covid-19 death since April 8, with the likelihood that Covid-19 is unlikely to disappear any time too soon, we may as well conclude the election without further ado.
During the height of terror where both the LTTE and the JVP threatened to kill anyone going to vote, Sri Lanka has held 5 Presidential Elections, 5 Parliamentary Elections, 7 Provincial Council Elections, 10 Local Government Elections from 1979 to 2009.
The Covid-19 situation may be somewhat different but Sri Lanka cannot simply not hold an election waiting in anticipation for Covid-19 to completely finish.
The 19A has given more headaches than any merit for the country. Contradictions and confusions abound leaving a can of worms open for controversial judgements and interpretations. The Amended Article 41B(6) says Election Commission is not answerable to Parliament while Article 104B(3) says Election Commission is answerable to Parliament. In such a scenario, is it fair to subject the country/people for the erroneous acts of a supposed independent commission to an ‘interpretation’ if an issue is taken to courts?
The EC itself is full of controversy. Its three members are eternally bickering. Some members are even taking internal issues to the public domain. Are these behaviours accepted by the Public Establishment Code? The 19A Article 104(1) requires all three members to be present for quorum but Article 104(1) a states that while the Chairman presides all meetings in his absence another member can preside. Isn’t this a contradiction of Article
104(1) which says all three must be present for decisions to be legal which is further contradicted in Article 104(3)? We have to now wonder how many decisions of the EC are actually legal given the confusions in quorum!
The EC had to give a fresh date at the time of cancelling the President’s set election date (regardless of whether he had a mandate to only cancel an electoral district and not islandwide) – NOT DONE (President set date for April 25 / EC cancelled this date on March 19, but did not issue fresh date)
The EC’s new election date had to be 14 days from the date gazetted for elections – NOT DONE
The EC was bound to ensure that a new Parliament convened by June 2, by holding elections – NOT DONE
The EC on March 19 says a new date will be given on March 26 – NOT DONE
The EC Gazette on March 21 says a date 14 days from April 30 will be set for new polls date – NOT DONE
The EC is bound by Section 10 of Parliamentary Elections Act to set a date not less than five weeks and not more than seven weeks from the closing date of nominations (between April 27 and May 14) – NOT DONE (nominations closed on March 19 – seven weeks from March 19 is not June 20 which is the date EC has fixed)
The EC did not declare an election date after cancelling the April 25 election date.
The EC did not declare a date 14 days from April 25.
The EC did not declare a date 14 days from April 30 as assured in its Gazette
The EC did not declare a date on March 26 as assured during press conference on March 19.
The EC did not follow the rule of declaring a date not less than five weeks and not more than seven weeks from the closing date of nominations.
Without following any of the above, the EC announces June 20 as the election date.
There is no requirement for any constitutional coup in a pandemic situation. Anyone who resorts to this avenue does so for their political advantage. With no conclusive end to Covid-19, common sense should dictate that we cannot indefinitely postpone Parliamentary Elections.
The EC as shown above has messed up its role. But given that it has set a date, Elections must be held on June 20. Political parties must refrain from childish endeavours to stall the elections. Their theatrics will not change the election outcome. These dramas, if at all, are only reducing their chances of getting public approval.
One good outcome in the faux pas of the Election Commission and political parties is the increased public scrutiny of people in public roles and many are even reading the Constitution and making their own interpretations. These are all high points in any democracy where sovereignty lies with the people and the executive, Legislature and Judiciary are only acting on the powers delegated to them by the people.