Has Sri Lanka’s Election Commission blundered

The President in dissolving Parliament on 2^nd March & 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 4 ½ years as per 19a – Article 70(1)
• Gazette notification gave date for Islandwide elections (25 April)
• Gazette notification gave nomination period (Mar 12 t o 19)
• Gazette notification gave date for convening of New Parliament

 

All steps that the constitution required the President to abide by was done.

 

The next part was in the hands of the Election Commission

 

12 March – The Election Commission began accepting nominations

19 March – The Election Commission closed accepting nominations

19 March – The Election Commission postpones 25 April elections without announcing a date but says a new date will be announced on 26^th March after consultations with health services

20 March – The EC issues gazette 2167/12 Parliamentary Elections Act Section 24(1) paras a) and c) but not a) to d)

21 March – The EC issues gazette 2167/19 postponing 25^th April elections & declares a date 14 days after 30^th April will be given as new date for elections.

31 March – The EC writes to President stating that new Parliament should convene on 1^st June citing elections could be held on 27 or 28 May 2020

1 April – The EC writes to President to consult Supreme Court on new elections date

20 April – Election Commission gazettes notification 2172/3 notifying Parliamentary Elections to be held on 20th June 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 island wide election set by the President for 25 April?

 

• If 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 (19 Mar) as the new date for elections in that electoral district. Why did the EC not do this on 19 Mar? EC did not specify any date when he cancelled the 25^th April 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 EC give a fresh date when he postponed the elections on 19^th March? http://www.dailymirror.lk/breaking_news/No-General-Elections-on-April-25-EC/108-185323

 

• On 19^th March the EC at the press conference cancelling 25^th April elections says he will give a fresh date for polls on 26^th March but the EC didn’t and did not give a reason why the EC was not giving a fresh date on 26^th http://www.asiantribune.com/node/93497

 

• Even by 21^st March, the EC in its gazette does not give a date but says a date will be given 14 days after 30 April. The EC did not declare a date. However, again the question of ‘can EC give an island-wide date for an election arises’.

 

• Why did EC write to the President on 31 March claiming that Parliament has to convene on 1^st June and that elections could be held on 27 or 28 May but the very next day write another letter to the President asking him to seek advice of the Supreme Court?

 

• If EC has mandate to declare island wide election, why should Section 10 of the Parliamentary Elections Act stipulate the EC with maximum 7 weeks from 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 5 weeks and not more than 7 weeks from closing date of nominations. If so, can EC set 20 June as election date?

 

• 8 April – President’s Secretary replying to the EC informs that it is the duty of the EC to announce fresh poll 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 EC’s gazette notification of 20 Mar.

 

• What is the explanation EC can offer for issuing gazette 2167/12 on 20 March citing only Section 24(1) sub paras (a) and (c) but omitting sub paras (b) and (d)

 

• 20 April the EC gazettes that elections will be held on 20 June but he does not explain how the EC arrived at this particular date.

 

 

The Challenges

• Parliament requires to convene 3 months from dissolution of Parliament – the date given by the President was 14 May, if elections were held on 25 April. With elections not held on 25 April and the EC declaring elections for 20 June, 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 19^th March by cancelling 25^th April election date set by HE the President.

 

• COVID19 – 11^th March 1^st Sri Lankan patient confirmed/ 28 March 1^st death & 7^th death on 8^th On 19^th March – the day EC postponed elections indefinitely Sri Lanka had no COVID19 deaths and only 53 confirmed cases. By 8^th April Sri Lanka had 7 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 & void. However, with the dissolution of Parliament on 2 March, the Old Parliament technically does not exist. Given that Sri Lanka’s COVID19 situation is well under control with no ICU patients, no patient in serious condition and the intel services confirming they have identified all community clusters and there has been no COVID19 death since 8^th April, with the likelihood that COVID19 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 LTTE and 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 COVID19 situation may be somewhat different but Sri Lanka cannot simply not hold an election waiting in anticipation for COVID19 to completely finish.

 

The 19a has given more headaches for Sri Lanka than any merit. The contradictions and confusions abound leaving a can of worms open for controversial judgements and interpretations. 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 erroneous acts of a supposed independent commission to an ‘interpretation’ if an issue is taken to courts?

 

The EC itself is full of controversy. The 3 members are eternally bickering. Some members are even taking internal issues to public domain. Are these behaviors accepted by Public Establishment Code? The 19a Article 104(1) requires all 3 members to be present for quorum but Article 104(1) a states that while Chairman presides all meetings in his absence another member can preside. Isn’t this contradiction Article 104(1) which says all 3 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 is 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 25^th April / EC cancelled this date on 19 March but did not issue fresh date)

 

The EC’s new election date had to be 14 days from the date gazette for elections – NOT DONE

 

The EC was bound to ensure that a new Parliament convened by 2^nd June by holding elections – NOT DONE

 

The EC on 19 March says a new date will be given on 26 March – NOT DONE

 

The EC gazette on 21^st March says a date 14 days from 30 April 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 5 weeks and not more than 7 weeks from closing date of nominations (between 27 April and 14 May) – NOT DONE (nominations closed on 19 March – 7 weeks from 19 March is not 20 June which is date EC has fixed)

 

The EC did not declare an election date after cancelling 25^th April election date.

The EC did not declare a date 14 days from 25^th April

The EC did not declare a date 14 days from 30 April as assured in its gazette

The EC did not declare a date on 26^th March as assured during press conference on 19^th March

The EC did not follow rule of declaring date no less than 5 weeks and not more than 7 weeks from nominations closing date.

 

Without following any of the above, the EC announces 20 June as election date.

 

There is no requirement for any constitutional coup in a pandemic situation. Anyone who resorts to this avenue are simply doing so for their political advantage. With no conclusive end to COVID19, 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 20 June. Political parties must refrain from childish endeavors to stall the elections. Their theatrics will not change 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 & 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 the sovereignty lies with the People and the Executive, Legislative and Judiciary are only acting on powers delegated to them by the People.

 

 

 

Shenali D Waduge