Eek to clear path for n 2018

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

Sunday Times (Sri Lanka) - - NEWS -

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.

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