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The right to vote and the right to contest were central issues that weighed on the Supreme Court (SC) in its determination on the Local Authorities Elections (Special Provisions) Bill, where a three-judge bench delivered a split decision.

On Friday, Speaker Dr Jagath Wickramaratne read out in parliament the determination of the Supreme Court on the Local Authorities Elections (Special Provisions) Bill which was challenged under Article 121 (1) of the Constitution.  

During the hearing held after the bill was challenged in the SC, the Attorney General provided the Court with the Cabinet memorandum that was the precursor to the Bill, where three justifications were set out for introducing the Bill. The first was that it is necessary to provide those who have registered in the electoral register of electors for 2024 as new voters, who would otherwise be deprived of their right to vote at the new date of polls fixed, and their right to submit nominations for the elections to be held. Secondly, since the amending Act has come into operation on November 17, 2023, it has become necessary to provide nominations for youth candidates in accordance with provisions in the Schedule to the Bill, and thirdly, because the existing Ordinance does not provide for the recalling of nominations.

In their majority decision, Justices Yasantha Kodagoda and Janak De Silva noted that the need to cancel nominations to provide the right to vote and contest for those who have registered as new electors in the 2024 electoral register “is misconceived in law.” They stated that the correct interpretation of Sections 6 and 43 of the Ordinance is that every person whose name is included in the electoral register for an electoral area “in force on the date the actual poll takes place” is eligible to vote. As such, the justices held that the words electoral lists “for the time being in force” in Sections 6 and 43 of the Ordinance is a reference to the electoral list, including any supplementary list prepared in terms of the Act, in force on the date the actual voting takes place.

“Hence there is no justification to cancel the nominations already received merely to provide new voters with the right to vote at the election. They are already entitled to do so. Any attempt to cancel the nominations already received on that basis will be irrational and unreasonable and inconsistent with Article 12(1) of the Constitution,” the justices stated.

The justices also dismissed the argument that nominations already received needed to be cancelled as holding the election with those nominations would deprive new voters registered in 2024 the right to contest. They emphasised that the test for determining the eligibility to contest is not registration. “The right to contest is not dependent on registration but only on being qualified to have the name entered and ordinary residence.”

The justices have pointed out that the candidates whose nomination papers were accepted are not responsible for the postponement of the local government elections. “Therefore, it is unreasonable to deprive them of the right to contest merely to permit the persons who are now qualified to submit nominations. Moreover, the persons who are newly qualified to submit nominations did so only because the elections scheduled to be held in 2023 were not held in violation of the fundamental rights of the persons whose nominations were accepted. In these circumstances, it is unreasonable to deprive the right to contest of the persons whose nominations were accepted.”

As for the third argument to cancel nominations to pave the way for youth candidates to contest in line with an Amending Act requiring 25 percent youth representation in a nomination paper, the justices have pointed out that the Amending Act, which took the form of a Private Members’ Bill by then MP Premanath C Dolawatte, had been certified on November 17, 2023, by which date the nominations for the LG elections to be held in 2023 had already been called for and accepted.

“Moreover, the candidates who submitted nominations have a vested right to contest the Local Authority elections that were scheduled to be held in 2023. That right cannot be taken away by a subsequent law unless the intention to do so is clearly reflected in the subsequent law. There is no such indication in the Amending Act,” Justices Kodagoda and De Silva have pointed out.

Given these reasons, the justices have held that the Amending Act was not intended to apply to the nominations already called for and accepted by the time it was certified. “The Bill seeks to apply it now. Therefore, it is irrational and unreasonable and inconsistent with Article 12(1) of the Constitution.”

Accordingly, Justices Kodagoda and De Silva have determined that the Bill read as a whole and in particularly Clauses 2 and 3 is inconsistent with Article 12(1) of the Constitution and can only be passed with a special parliamentary majority.

In his dissenting opinion to the determination that the bill requires a special parliamentary majority, Justice Arjuna Obeyesekere has observed that the right to vote and the right to contest are all part of the right to take part in public affairs and elections, which forms the bedrock of a democratic process, and is an essential part of the freedom of expression guaranteed under Article 14(1)(a). “It would therefore not be possible to restrict the scope of the freedom of expression only to one aspect of voting. The right to vote would be meaningless if voters do not have the right to contest.”

Justice Obeyesekere though, has agreed with the interpretation given by the Attorney General’s Department that the phrase “for the time being in operation/force” found in Sections 6 and 43 of the Ordinance is a reference to the date on which the notice of nominations is issued. Therefore, he has opined that the electoral register that must apply is the one that was in existence on the date the notice of nominations was issued. Therefore, the only way in allowing those persons who have registered as electors since the publication of the notice of nominations on January 4, 2023 to vote at the forthcoming election, as well as to afford them an opportunity to contest, is if the nominations submitted pursuant to the notice on January 4, 2023 are deemed to be “of no force and effect.”

Holding the election on nomination papers that were submitted in January 2023 effectively deprives those who qualified to register as voters from that date from submitting nomination papers for an election that is to be held in 2025, Justice Obeyeskere has observed.

The Bill brings into play competing rights and interests of two groups; those who have tendered nomination papers in January 2023 and 484,617 others who have registered as voters since January 2023. Justice Obeyeskere has agreed with the Attorney General’s argument that even if the rights of the petitioners are in danger of being violated, they fall under restrictions that can be applied under Article 15(7) of the Constitution, specifically the part noting “for the purpose of securing due recognition and respect for the rights and freedoms of others, or of meeting the just requirements of the general welfare of a democratic society.”

The Court must balance the rights sought to be advanced against the rights that are sought to be restricted, the Justice has observed. “Applying this test, on the one side is the right of those who have handed over nominations to contest, which right is sought to be restricted by the Bill. On the other side are two categories of persons whose rights are sought to be secured. The first are those who have been registered as voters since January 2023 and whose right to vote and the right to contest will be advanced by the Bill. The second are all other registered voters who will now have the right to vote according to an electoral register that is current, relevant and representative. For the reasons I have already set out, I am of the view that the right of the latter must prevail.”

Accordingly, he has determined that the Bill as a whole or any provision thereof is not
inconsistent with the provisions of the Constitution and maybe enacted with a simple majority
in Parliament.