Columns

The eruption of a fresh controversy this week regarding correction of technical mistakes in the Sirisena-Wickremesinghe Government’s Local Government Elections Bill has again raised the bogey of postponement of the upcoming ‘punchi chande’ polls. The Government has reassured the public that the Bill will be rectified once party leaders meet in the coming days and that the local government polls scheduled for January next year will not be delayed.

Interfering with polls is a perilous exercise
But public confidence in such assurances is not high, given the recent exercise of using an innocuous amendment to the Provincial Councils Act ensuring women representation to bring in a whole host of amendments entirely unrelated to the original Bill which had the virtual effect of delaying the scheduled provincial council polls.

One has scant sympathy for the so-called Joint Opposition howling to the heavens that its members are not given sufficient time to study Bills brought before the House. They headed a Parliament at one time which did not even care for the mundane checks and balances in law making and excelled in impeaching a Chief Justice in virtually a matter of days. These are memories still fresh in our minds. The pious preaching of the values of parliamentary democracy should therefore be roundly dismissed with the contempt that it richly deserves.

Regardless of these inequities however, this Government came into power promising a change from the past. It must not shut its eyes, ostrich-like, to the dangers of ill-advised actions. This is true of allegations of bond scams that are swept under the carpet with alacrity, not to remain there for very long as we have seen as it is true of polls. Interfering with polls, particularly in regard to the fixing of dates therein is a perilous exercise which has always negatively rebounded on a Government in power by projecting an image of weakness.

The importance of a citizen’s right to vote
In one of the clearest precedents applicable to this precise point, the Supreme Court of Sri Lanka warned long years ago (Karunatilleke and Another v Dissanayake and Another, 1998) that since, Article 154A (of the Constitution) ‘contemplates the continued existence of elected Provincial Councils, it follows that elections must not be delayed more than is really necessary.’

The fundamental principle, as judicially articulated, was that ‘the silent and secret expression of a citizen’s preference between one candidate and another by casting his vote is no less an exercise of the freedom of speech and expression than the most eloquent speech from a public platform.’

Here too the question concerned the holding of provincial polls with the central question being the power of the Elections Commissioner in regard to fixing a date of polls. The Court emphasized that this is a power that must be exercised independently. Bringing constitutional provisions into focus at the time, it was observed that ‘the Commissioner has been entrusted by Article 104 with powers, duties and functions pertaining to elections, and has been given guarantees of independence by Article 103, in order that he may ensure that elections are conducted according to law: not to allow elections to be wrongfully or improperly cancelled or suspended, or disrupted, by violence or otherwise. ‘

Negative impact on the Elections Commission
In the recent controversy that arose over the Provincial Councils amendment, it may be conceded that the matter concerned an amendment legislatively passed and therefore posits a very different legal question altogether. This is now before the Supreme Court. Regardless of the different factual contexts however, the impact on the voting populace remains the same. Postponement of polls is not an act that is welcomed with gladness by civic citizens. This is irrespective of the fact, as the Minister in charge of that portfolio loudly bleats to all and sundry, that the additional amendments brought in were meritorious of their own accord.

In fact, this has repercussions on a different level. In 1998, the individual in issue was the Elections Commissioner and the very same public official who, in later years, wept before the national television cameras in the Rajapaksa period confessing to his inability to hold a poll with any measure of integrity. Now this country has an Elections Commission in place, as proudly showcased by this Government in its boasts of what the 19th Amendment achieved.

But despite this theoretical change, of what worth is the independence of the institution when legislative devices and trickery are resorted to in order to circumvent the democratic process? This is a question that needs to be asked.

Need for a national policy on scrutiny of Bills
Meanwhile, a national policy mandating that draft legislation must be thoroughly studied in public before Bills are presented to the House is a priority. We have useful examples in this region itself. The Indian Government has put into place a policy on pre legislative consultation. Each Ministry must publicise draft laws for thirty days before submitting a Bill or even a Regulation to the Cabinet.

Along with the Bill, a justification of its introduction, financial implications, estimated impact assessment and an explanatory note for key legal provision must also be provided. All comments and submissions on the Bill are made public. In Sri Lanka, this is an urgent need as only Bills can be challenged in court within a limited period unlike the case elsewhere where the respective Supreme Courts have firm powers to review unconstitutional laws.

A cynic might argue that a policy such as this may be impossible in a context where hasty amendments and hasty laws have been instrumentally used by all Governments to achieve political ends. This argument may indeed be true. However, a Government must not be allowed to sidestep its electoral contract with the people using clever tactics that confound the trust placed in it.

In tandem, the power of the courts to review unconstitutional laws must be ensured. It is the height of nonsense that Sri Lanka nervously declines to give judges that power. If the protection of customary laws that infringe constitutional guarantees is the reason as traditionally put forward, then it is high time that progressive law reforms takes place in these areas as well. Sri Lanka shames itself in this region and in the world in clinging to outdated and obsolete notions of privilege attaching itself to groups, parliamentarians or religious communities as may be the case.
It is time we stopped.