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• Election Commission Chairman gives extensive interview explaining why  elections were delayed; wards being carved out, three lists from each party
• Deshapriya says people’s will needs to be expressed freely and fairly in scheduled elections; quips that no one knows when polls will be held in Sri Lanka

By Our Political Editor
State machinery has begun to grind slowly but surely for local government elections in January next year but a Provincial Council poll is shrouded by more uncertainty over new procedural and legal issues.

Election Commission Chairman Mahinda Deshapriya: Holding elections on schedule is vital for democracy. File picture

Blueprints are ready with the Ministry of Provincial Councils and Local Government to ensure nominations next month for polls in the third week of January next year. There are 335 local bodies – 271 Pradeshiya Sabhas, 41 Urban Councils and 23 Municipal Councils. A formal announcement will come in the form of a Gazette notification to be issued by the Minister. Blueprints are already being prepared by the Ministry and the likely poll dates are either January 20 or 27 next year.

Of course, that is after the Government clears one more hurdle. That would be the string of amendments it will move on Monday (October 9) in Parliament. These are at the second reading of The Municipal Councils (Amendment) Bill, The Urban Councils (Amendment) Bill and The Pradeshiya Sabha (Amendment) Bill. That will empower the Minister to publish a new gazette notification, said Election Commission Chairman Mahinda Deshapriya.

“For example,” he said “the Minister has to announce that the Colombo Municipal Council should elect 66 members through First Past the Post (FPP) and 44 through Proportional Representation. It will bring down the number of members in the CMC to 110 from 113.” Yet, the earlier number of members of the CMC, which now stands dissolved, is 53. Similarly, Deshapriya said, in the Ambalangoda Urban Council it would be 12 members elected via FPP and eight through PR. Previously, he noted, the Minister had to only give the limits of a local government body and the number to be elected in a gazette notification. The numbers in each body would vary, he pointed out.

The Election Commission hopes that by the coming Tuesday Speaker Karu Jayasuriya will sign the declaration that the three amended statutes are “duly passed.” Deshapriya said, “We will have to certify that it is the Electoral Register for 2017 on which the local polls will be held. Such a certification will take place on October 12 on a ward by ward basis. There are 4,000 such wards, he said. “We need another week to ten days to issue notice. That is likely on October 20.”

Earlier, the Election Commission had planned to formally announce elections to three Provincial Councils (PCs) on October 2. This is for PCs for Sabaragamuwa (term ended on September 26), North Central (term ended on September 30) and Eastern (term ended on October 1). However, the Provincial Council Elections (Amendment) Act was taken up in Parliament a fortnight back calling a halt to all its plans and arrangements.
The new law, Deshapriya said, has changed the “entire system.” The 70: 30 ratio for elections (FPP and PR) was changed to 60:40. Female representation of 25%, which in terms of the original bill was through a separate list, was brought into the PR list. The new system incorporated in the law that was passed is 100 per cent Proportional Representation. Winners in the wards will be elected but the rest will come from the list. The Commission has to ensure that 25 percent of the female members are included. Earlier, the winners at a PC election were picked through a Preference Vote (or a manape). There are no more losers. We will distribute the seats via the PR system, Deshapriya said.

Deshapriya declared that everyone was asking why he announced that Provincial Council elections would be held in January next year. He said he made the remarks on the basis that there were only three days when a PC poll was possible in December. That too were Saturdays. They were December 2, 9 and 16. “We could not have had it on December 2 because the day before that was Milad-un-Nabi, Prophet Muhammed’s birthday. December 3 was a Poya Day. GCE (OL) examination has been scheduled to begin on December 16. Thus, we cannot use the schools as polling stations. Therefore, the only date available was December 9. Those are the reasons. The requirement was that we had to decide on PC elections 70 to 75 days from end of October. After the GCE (OL) examination it was not only the Christmas holidays. It is mandatory that Government sector accounts would have to be completed before the end of December. “We cannot therefore deploy state officers for election duties during that period. Hence, the dates available January next year were suitable but other reasons prevented it,” added Deshapriya.

The passage of the Provincial Councils Election (Amendment) Bill has generated a controversy. Former Chief Justice Sarath N. Silva is among those who have filed fundamental rights petition before the Supreme Court. Silva told the Sunday Times yesterday, I am “challenging an executive or administrative action.” What he was alluding to was that he was not pitting the judiciary against the legislature by challenging a legislative action. Fundamental Rights action can be determined by the Supreme Court only on executive or administrative actions. He blamed Speaker Karu Jayasuriya for declaring that the law as “duly approved” in Parliament. Responding to the remarks, Jayasuriya said, “it is up to the Supreme Court to adjudicate over the claims. I am not required to offer explanations.” See box story for remarks by the former Chief Justice.
The Elections Commission Chief emphasised: “According to our Constitution, franchise is the most important thing. You cannot deny franchise. Sovereignty belongs to the people. I have often told the public that the Universal Declaration of Human Rights of 1947 contains 30 articles. Twenty one of them exhort the fact that the foundation of any country must be the people’s will. The people’s will must be expressed freely and fairly in scheduled elections,”

He said Sri Lanka had signed that Protocol in 1955. However, he declared that the “Election Commission cannot break the law. We cannot protest about it or burn tyres on the streets. We can only educate the public that we are in no way responsible for any postponement of elections.”

Chairman Deshapriya spoke to the Sunday Times from his third floor office at Rajagiriya. A past pupil of Dharmasoka College, Ambalangoda, Deshapriya guffawed when I asked him about the blue collarless T-shirt he wore. Perhaps due to the mild chill in weather caused by a heavy downfall of rain, he wore it. It noticeably sported the Royal College emblem with the Latin words Disce Aut Discede (“Learn or Depart”). His wealth of knowledge over political parties and past elections flowed interspersed with anecdotes. At one point, he noted that the laws are made by lawmakers. They are defined by the Supreme Court. “We cannot cut the Gordian knot,” he said in his husky voice. The Gordian knot is a legend associated with Alexander the Great. It is often used as a metaphor for an intractable problem (disentangling an “impossible” knot) solved easily by finding a loophole or thinking creatively. In another instance, he drew an analogy borrowed from a colleague in the Commission. He said in order to protect his poultry, the owner chose to place his dog outside it. It helped protect the poultry but the owner soon discovered that his entire house had been robbed.

Deshapriya said that no one is able to discern an election schedule in Sri Lanka anymore. This was the result of a metamorphosis the Local Government Ordinance of 1946 went through. In 1991, 1997, 2001 and 2011 LG (Local Government) elections were conducted at regular intervals. However, in 1969 the schedule was interrupted. There were no elections due to the State of Emergency that prevailed. The then Government (the UNP was in office) postponed the elections. It introduced the District Development Council elections to replace the Urban Council, Town Council and the Village Council. We even had by-elections. The last such one was the Suduwella seat in the Colombo Municipal Council in March 1971. This was how Sirisena Cooray entered politics. The Government then introduced the PR system for the entire country. However, this was sans preference votes.

In 1981, District Development Council elections were held under the Proportional Representation System. There were some unfortunate incidents in the North. The election to Jaffna DDC was one of the worst. In 1987 the then Government introduced preference votes or the manape system. We were ready for elections thereafter but the disturbances after the signing of the Indo-Lanka Accord prevented them. They were put off.

It was the Karu Jayasuriya-Dinesh Gunawardena Parliamentary Select Committee that recommended a mix of first-past-the post and PR system of polls. The latter was to make provision to include some of the losers. This received legal effect through Act No 22 in 2012. This law conferred wide powers on the Minister in charge of the subject of local government. The system had undergone a remarkable change. Using the powers vested, the Minister began to extend the terms of local bodies. Ahead of elections, the Minister is required to publish a gazette giving the limits of the local body and the number of members to be elected. There were technical defects in the law. We had to point these out.

When lawmakers changed laws, they sometimes omitted existing provisions or did not make enabling provisions in the same or another related statute. Nevertheless, there are such other errors still existent. Between 2012 and 2013 we wrote letters to the Secretary to the Ministry of Local Government. We said that in order to conduct local body elections, Deshapriya pointed out, “we needed certain technical defects to be changed through amending legislation or through a gazette notification by the Election Commission.” One such error, for example, is the legal definition of an Authorised Agent. The provision had been omitted. In effect, that meant that the General Secretary of a recognised political party or a group of independents could not nominate any other on their behalf. Hence, the General Secretary had to execute a humanly impossible task – be present at the same time at all centres that were to receive nominations. He had only two and half days – the period set out for nominations – to do so.

Deshapriya pointed out that “some are of the view that these could be corrected by a gazette notification issued by the Election Commission.
The fact that Parliament is meeting on a Monday to clear these Bills is proof enough the Government has its sights on the local government elections. Thereafter, the Speaker will have to certify that the three Bills were “duly passed by Parliament.” It is only then that the Local Government and Provincial Councils Minister will issue a Gazette notification. Expectations are that the Minister will Gazette them later this month. It would be mandatory for the Election Commission to conduct the elections within 75 days. January 20 next year is being spoken in Government circles as the possible date for local government elections with nominations in the latter part of November this year. Earlier, the Election Commission had opined informally that January 13 was the ideal date. However, it has turned out to be unsuitable on account of Thai Pongal when Hindus celebrate their harvest festival.

“No one in this universe knows when exactly any election could be held in Sri Lanka,” quipped Deshapriya, The Election Commission, he said, is of the opinion that the local government elections are unusually late. He recounted the recent causes for the delay: In amending the 2012 local government law, there is a clause which says the Minister can appoint another review committee when the Delimitation Committee Report is forwarded. Therefore, in November 2015, Local Government and Provincial Councils Minister (Faiszer Musthapha) appointed a Committee headed by Ashoka Peiris with four representatives from the political parties (United National Party, United People’s Freedom Alliance, Janatha Vimukthi Peramuna and the Ilankai Thamil Arasu Katchi).

“This Committee and the Local Government Minister had an All-Party Conference in December 2015 and declared that their report would be out in three months. They said elections can be held in April 2016. In April the Elections Commission was appointed and as the Chairman of the Commission, I expressed doubts and said more time would be taken. I said if everything is completed the elections can be held in 75 days. The Ashoka Peiris Committee report was made available only in February 2017. Minister Musthpha had gazetted it on February 17, 2017. The review is over and the people questioned as why elections cannot be held. We needed the boundaries, technical defaults needed to be corrected and also we needed the number of members to be elected.

“While these processes were on in 2016, the Government introduced a new Act to increase women representation. According to this Act, there must be a minimum of 25 percent female members in the Council. They must be brought in from a separate list. The earlier system was for people to contest from a ward and when they win and another number is selected from the losers list.

“This means there would be three nominations lists, one to contest (from wards), one to be selected from the losers and another one for female members. In Colombo (MC) there would have been 66 from votes, 19 from losers list and 28 females – altogether 113. Earlier the council had only 53 members. The 28 females are compulsory. Therefore, you can understand why the Commission cannot call for elections – because we do not know the exact number. The Minister must gazette it.

“We started writing to the minister earlier about the technical faults. They started working only in 2015. Minister Musthapha gazetted the number of members in April 2017. He put the effective date as July 1, 2017.
But in July he submitted a draft Bill to Parliament to clear the technical faults. But as we had the wards and the numbers, our plan was to announce the elections in the first week of July. But the minister issued another gazette on June 30, 2017 and postponed the effective date as October 2. 2017. Therefore we could not go ahead with the plan to conduct elections,”

Political parties joining the election fray are busy. The SLFP’s pro-Sirisena members will contest under the UPFA banner. On Thursday, President Sirisena continued his one-on-one dialogue with SLFP parliamentarians. Discussions, like at their Tamarind Hill meeting in Galle last week, are centring on electoral matters including the upcoming polls. The other main contender, the UNP, is busy picking candidates. The third formidable player, the ‘Joint Opposition” is yet to formulate its common alliance and field candidates as a joint entity. There, the ‘JO” leader Mahinda Rajapaksa, who for all purposes now heads the Sri Lanka Podujana Party (SLPP) will wield considerable clout in picking candidates. Sri Lankans will have to wait at least till January next year for a readout of the political barometer – whether the coalition now ruling them is as popular as it was when elected. That in essence will be the outcome of the local council poll.

Citizen Silva to challenge way PC laws were passed “I am appearing before the Supreme Court as a citizen of Sri Lanka and thus exercising my Constitutional right,” former Chief Justice Sarath N. Silva said yesterday.He pointed out that Article 126 of the Constitution lays down, that the Supreme Court “shall have the sole and exclusive jurisdiction to hear and determine any question relating to the infringement or imminent infringement by executive or administrative action of any fundamental right or language right declared and recognised by Chapter III or Chapter IV.” Sarath N. Silva He was commenting on the fundamental rights application he has filed before the Supreme Court challenging the Provincial Councils Elections (Amendment) Act No 17 of 2017. His petition is three fold: (1) that the Attorney General’s opinion on the amendments to the Bill was ultra vires and void. (2) He, as the petitioner, is seeking a declaration that the Speaker’s certification that the Bill was duly passed by Parliament is ultra vires and void; and (3) a direction to the Election Commission to proceed immediately to hold elections to Provincial Councils on the basis of the existing law. Sarath Silva told the Sunday Times; “We are a democracy. The essence of such a democracy is periodic elections. It is through the use of the franchise of the people that a President, Parliament, Local Government and Provincial Council institutions are elected. It is the same franchise that is used. “Local Government is very close to the heart of the people. There are Municipal Councils, Urban Councils and Pradeshiya Sabhas. One person who understood this concept extremely well was the late President Ranasinghe Premadasa. He knew they were institutions elected by the people. He was quite conscious that there should be continuity. That was why he made provision for the conduct of elections to these local government bodies six months before their terms expired. That way he ensured there was no disruption of the work carried out and development programmes, among other matters, were on schedule. Since August 2015, however, they (the present Government) resorted to various ruses to put off elections. We now see some of the ill effects of such action. “Garbage from the City of Colombo, which came under the purview of the Colombo Municipal Council, was dumped in Kolonnawa, an area which came under another local government body. The sky high pile of rubbish collapsed in April last year, when the nation was observing national holidays. Nearly 30 people died. This is a clear case of the absence of democracy at the grassroots level. “The terms of three Provincial Councils have ended. They (the administrations) have been brought under Governor’s rule. The Government did not wish to have elections. It introduced the 20th Amendment to the Constitution. It is well known that the objective was to put off elections to the three Councils whose terms had expired. The Supreme Court held that the 20A cannot be passed without a two thirds vote and a referendum of the people. When their plans went awry, they (the Government) used the Provincial Council Elections (Amendment) Bill which was specifically intended to provide for 30% of the members to be elected to Provincial Councils were women. “After the formal first reading, at the second one the provisions remained. However, when it came to the third reading or the Committee Stage, they introduced 21 pages full of amendments. The original provisions of the Bill were altogether replaced by the Minister and an entirely new Bill was moved. This is a dangerous precedent. For example, if they want to abolish Provincial Councils they could follow such an insidious procedure. “Other parties too will go to Supreme Court. Urgent steps are necessary in the public interest. That is why I am moving in. Democracy is a collective right. Since all cannot go to Court, one must go. We have nothing to do with Parliament. Let them do what they want. We are saying that the Speaker is at fault. What the Attorney General expressed was only an opinion. Only the Supreme Court, as the country’s Constitutional Court can determine the constitutional validity of a Bill. How can the Speaker say that the Bill was “duly passed”? He is the custodian of the House. “My fundamental rights application is in respect of an “executive or administrative action.”