Powers of Sri Lanka’s Elections Commission to postpone/declare new date for elections
Sri Lanka is facing multiple issues. At a global & local level there is pandemic health crisis impacting the lives of all. Governance of country has fallen into the hands of the President & the Public Sector which is why it is important to have elections to enable a fresh government to join in the effort. No one really wants a failed & unsupportive government with a track record of corruptions & in competencies to reconvene & return to Parliament. The Elections Commission is not helping the issue by some of its dubious actions & statements.
It is true Sri Lanka is facing a pandemic of unknown proportions. We suffered more than 3 decades of human viruses but still conducted elections during the most repressive years of killings.
Between 1979 to 2009 Sri Lanka held in:
5 Presidential Elections (1982, 1988, 1994, 1999, 2005),
5 Parliamentary Elections (1989, 1994, 2000, 2001, 2004),
7 Provincial Council Elections (1988, 1993, 1994, 1999, 2004, 2008-2009) &
10 local government elections (1983, 1991 1994, 1997, 1998, 2002, 2003, 2006, 2008, 2009)
Elections were held & People voted inspite of JVP & LTTE threatening to kill the 1st voter.
On 15 April 2020, South Koreans went to polls with 44million eligible voters. The voter turnout was over 66%. The highest turnout was 71% in 1992.
The ruling party won 180 of the 300 seats to the National Assembly – an increase of 60 seats recording the biggest win by a ruling party since 1987.
South Korea has over 10,000 covid-19 cases and 240 deaths.
US is also due to have elections in November this year. US has so far recorded the highest covid-19 cases – close to 926,000 and close to 53,000 deaths.
USA has not indicated even postponing elections.
Confusions & contradictions of 19a – Election Commission
Sri Lanka Constitution Chapter 7 – Article 41B(6) amendment by 19a says only the Election Commission is not answerable to Parliament (all other independent Commissions are answerable)
Sri Lanka Constitution Chapter 9 – Article 104B (3) states “The (Elections) Commission shall be responsible and answerable to Parliament in accordance with the provisions of the Standing Orders of Parliament for the exercise, performance and discharge of its powers, duties and functions and shall forward to Parliament for each calendar year a report of its activities for such year.”
Is Election Commission responsible to Parliament? Article 41B(6) says NO, Article 104B(3) says YES.
How will the Supreme Court answer the question?
Article 103(1) was amended by 19a –
Elections Commission 3 members was to be appointed by the President ON RECOMMENDATION of the Constitutional Council.
Article 104(1) Quorum for Commission requires all 3-member present
Article 104(1) a) states, Chairman presides all meetings of Commission but in his absence another member can preside. Isn’t this contradicting Article 104(1) Quorum requiring all 3 to be present – if one is not present the meeting is illegal!
Article 104(2) b) states decisions by majority present and voting if equal votes (how is this possible with just 3 members)
Article 104 (3) says the EC ‘shall have to act notwithstanding any vacancy in the membership of the Commission, and no act or proceeding or decision of the Commission shall be invalid or be deemed to be invalid by reason only if such vacancy or any defect in the appointment of a member’. Quorum requires all 3 presence, but is contradicted in Article 104(3) which says a meeting without quorum is still legally binding and valid. Mind boggling English comprehension!
Article 104A (a) and (b) states no court shall have power or jurisdiction to entertain or hear or decide or call into question on any ground and in any manner any decision, direction or act by the Elections Commission, made or done or purported to have been made or done under the Constitution or under any law relating to the holding of an election or conduct of a Referendum in which decisions, directions or acts shall be final and conclusive.
No legal suit or prosecution or proceeding shall be taken against any member or officer of the Commission for any act or thing which in good faith is done or purported to be done by him in the performance of his duties or discharge of his functions under the Constitution or under any law relating to the holding of an election or conduct of a Referendum.
Can Elections Commission be taken to Courts?
Under Article 104 A, Election Commission can be taken to court over fundamental rights issues under Article 126 of the Constitution – the writ jurisdiction of the Court of Appeal in the case of the Elections Commission will be exercised by Supreme Court and not Court of Appeal with regard to petitions pertaining to conducting of presidential elections, referendums or appeals relating to election petitions pertaining to Parliamentary elections.
No wonder the architects of 19a are fled the country while other architects are fishing in troubled waters they created!
Let us first look at the timeline of the dissolution of Parliament
|2 March 2020
|President dissolves Parliament / Sets date for Polls & Sets date to convene New Parliament|
|11 March 2020||1st covid-19 patient confirmed|
|12 March 2020||Acceptance of nominations for General Elections|
|19 March 2020||Nominations Close|
|19 March 2020||Election Commission calls press conference postponing elections without announcing date|
|20 March 2020||EC gazette notification 2167/12 refers to Parliamentary Election Act Section 24 (1) paras (a) and (c) and not (a) to (d)|
|21 March 2020||EC gazette notification 2167/19 states poll cannot take place on 25 April 2020 and the Commission will appoint a day after 14 days from 30 April 2020 as the new day of poll.|
|28 March 2020||1st covid-19 death / 7th covid-19 death on 8th April|
|31 March 2020||Elections Commissioner writes to President citing polls could be held on 27th or 28th May 2020|
|01 April 2020||Elections Commissioner writes to President to consult Supreme Court on new elections date|
|08 April 2020||President’s Secretary replies reminding EC that it is EC duty to announce fresh poll date and consultative jurisdiction (Article 129) does not apply & the President does not wish to interfere in duties of the EC while also highlighting shortcomings in EC’s gazette notification of 20 March 2020|
|18 April 2020||Prime Minister Mahinda Rajapakse issues statement reminding Elections Commission of its duty to announce new polls date|
|18 April 2020||TNA sends letter to Election Commission not to fix new date|
|20 April 2020||Elections Commission sets 20 June as new polls date|
2nd March 2020: The President dissolved Parliament / Declares elections for 25th April & sets new date to convene Parliament as 14 May 2020
However, 9 days after the President’s declaration the 1st covid-19 patient was confirmed (11th March 2020). But the President did not have powers to postpone elections. The mandatory power to re-fix a polling date when the date fixed by the President cannot be held, falls on the Elections Commission via Section 24(3) of the Parliamentary Elections Act No. 1 of 1981. Amendment was made on 24 May 1988 to subsection 10.
Note: The Elections Commission has to fix a new date not postpone the poll without fixing a date.
Deaths from covid-19 in Sri Lanka:
1st death – 28 March / 2nd death – 30th March / 3rd & 4th Deaths – 2nd April / 5th death – 4th April / 6th death – 7th April / 7th death – 8th April (only 140 active cases and 42 recovered)
12th March 2020: Acceptance of nominations for General Elections begin
19th March 2020: Nominations close / Election Commissioner delays elections without date
Nominations closed on 19th March 2020. That very day Election Commission holds press conference and announces elections will not be held on 25th April (date announced by President) citing the covid-19 situation. He says EC will continue to receive nominations.
The Elections Commissioner says the new date will be 14 days after the day on which elections was set to be held (25th April was the date fixed by the President) He states that the new date would be announced on 26th March after discussions with health authorities.
(Note by 19th March no Sri Lankan had died of covid-19)
31st March 2020 – EC writes to President
Stating that the new Parliament should convene at least on 1st April 2020 & that the latest dates on which the polls could be held was 27th or 28th May 2020.
1st April 2020 – EC writes to President Rajapakse to consult Supreme Court on Holding Elections
The Election Commission states the new Parliament has to convene before 2nd June (within 3 months of dissolution of Parliament) and citing the current situation in the country impedes holding of election by end May.
8th April 2020 – President’s Secretary responds to Election Commission via letter
- Acknowledges letters received from Election Commission dated 31st March and 1st April
- Reminds that with proclamation of gazette 2165/8 (2 March) Parliament was dissolved and new Parliament was to meet on 14th May and date of elections fixed for 25 April
- Consent to contest was given in letters by Political Parties and independent groups, deposits made and nominations commenced – this signaled acceptance of dissolution, acceptance of date for polls, and submission of nominations to Returning Officers.
- The Secretary highlights that the Election Commission published a gazette notification 2167/12 on 20 March 2020 referring only to sub paragraphs (a) and (c) of Section 24 (1) Parliamentary Elections Act – but OMITTED including sub paragraphs (a) to (d) of Section 24 (1). (In publishing only (a) and (c) the Election Commission drew attention to only poll taking place between 7a.m. and 4p.m. in each electoral district and electoral districts the election is contested
- Gazette 2167/19 on 21 March 2020 by Election Commission states poll cannot take place on 25 April 2020 and the Commission will appoint a day after 14 days from 30 April 2020 as the new day of poll.
- The President’s Secretary points out that as per Section 24(3) the Commission has to specify another day for polls in the Gazette issued under Section 24(3) if the poll cannot take place on 25 April 2020.
- The President’s Secretary states that the new date has to be 14 days after the date of gazette publication under Section 24(3) of the Parliamentary Elections Act
- The President’s Secretary reminds the Election Commission that it is NOT the President who is responsible for fixing new poll date but it is the role of the Elections Commission and that the President does not wish to interfere in duties of the Election Commission.
- The President’s Secretary also points out that as per Section 24 (3) of the Parliamentary Elections Act, though the time period given for postponement is not less than 14 days, polls could be held even on 15th
- The President’s Secretary also reminds that it is the right of the people to exercise their franchise right to vote.
- The President’s Secretary ends letter by stating that Article 129 (Consultative Jurisdiction) in referring issue to Supreme Court by President does not arise as the duties to fix new polls date lies with the Elections Commission and not with the President.
On 18th April the PM issues a statement conveying following:
- Compared the pandemic impact on strong economies of West against economic ruin following yahapalana rule from 2015 to 2019 with debt burden increasing by 71%
- Informed that Parliament functioned without a majority since November 2019 Presidential elections and without the support of the Opposition even for vote on account
- Informs that the saving grace was the financial powers vested in the President under Article 150(3) which has helped to deal with the pandemic since 11 March 2020 & discovery of 1st covid-19 patient
- Reminds of the magnitude of the crisis is one Sri Lanka has never experienced and impacting the lives of all
- The PM highlighted how the Opposition had tried to scuttle the situation – encouraging protests against quarantine process, undermining Govt services claiming the President did not have powers to allocate funds for services after dissolution of Parliament, and present demand to rescind Parliament & reconvene it as the new Parliament has to meet before 2nd
- The PM reminded how yahapalana delayed local govt elections for nearly 3 years by even moving courts.
- The PM says that ‘Sri Lanka is also the only democratic country in the world where political parties petitioned the Supreme Court to get the declaration of a parliamentary election annulled”
- The PM also cites that 11 of the 25 districts has no coronavirus patients. (The situation may have changed slightly since this statement)
- The PM highlights the mandatory obligation that falls on the Election Commission to fix a fresh date when the date decided by the President to hold the polls cannot be held (Section 24(3) of the Parliamentary Elections Act No. 1 of 1981)
18 April 2020: TNA writes to Election Commission not to fix new polls date until “assurance by local and global health experts that it is safe to do so”
20 April 2020: Election Commission gazettes notification 2172/3 notifying Parliamentary Elections to be held on 20th June 2020.
The notification cites Section 24(3) of Parliamentary Elections Act 1 of 1981. As per this together with the amended Section 10 requirement to set a date not less than 5 weeks and not more than 7 weeks from closing date of nominations, the Elections Commission cannot set a date beyond 14th May.
However, Elections Commissioner has put 20th June 2020. WHY and does he have powers to do so? If not, he must revise this date to comply with the very sections he quotes in gazette.
Questioning the Actions of the Elections Commission/Commissioner
- Why did EC not declare a fresh date for polls when he convened a press conference on 19th March to cancel the elections scheduled for 25th April declared by the President on 2nd March 2020?
- Why did EC overlook section 10 when citing Section 24(3) of the Parliamentary Elections Act. (i) a day not less than 5 weeks and not more than 7 weeks from the closing day of the nomination period. Since nominations closed on 19 March, the Elections Commission had to set a new date not less than 5 weeks and not more than 7 weeks from 19th March 2020 (which would be 27th April or 14th May)
- Why did EC via gazette cite Section 24(3) applicable to ‘ANY DISTRICT’ in which a poll cannot be held as Section 24(3) does not imply ALL DISTRICTS.
- Why does the Elections Commission need to write to the President of Sri Lanka asking him to consult the Supreme Court when the EC is well aware that it is empowered to declare a fresh date for elections?
- Why does the Elections Commission first write to the President on 31st March informing him the latest date for elections is 27th or 28th May and then write again on 1st April claiming that Parliament has to convene before 2nd June and then claim the current situation in the country impedes holding of elections in end of May?
- If by letter to President on 31 March 2020, the EC informs that the latest date for elections can be 27th or 28th May, why did EC declare 20th June as election date?
- As per letter by President’s Secretary in response to 2 letters sent by the EC – what explanation can EC give for issuing gazette 2167/12 (20Mar) citing only Section 24(1) sub paras (a) and (c) but omitting sub paras (a) to (d)
- The PM also reminds the EC of the powers vested in the EC to declare a fresh date for polls if the date declared by the President is cancelled. But there were certain rules to follow in declaring a fresh date. However, the EC declaring 20th June violates those rules. EC must apologize and correct the error.
- The Election Commission had to declare a date 14 days from 25th April or 14 days from 30th April (as per EC gazette 2167/19 on 21 Mar claiming EC would appoint a date 14 days from 20th April) – but EC declares 20th June which is well beyond the 14 days he is mandated to follow.
Bottom-line is, the Election Commission had 3 options to fix a new poll date governed by these rules
- A date no less than 5 weeks and not more than 7 weeks from nominations closing date – meant he could have declared elections on 14th May
- 14 days following the cancellation of President’s declared election date 25th April
- 14 days after 30th April as given in EC gazette notification.
Without following above – why did EC announce 20th June as election date has to be officially responded by the Election Commission & Election Chairman.
The Elections Commission does have an option via Section 24 (3) under emergency situation which allows Elections Commissioner to consider a staggered election over a number of days dividing electoral districts into high risk/low risk as some districts have no cases of covid-19.
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”.
Essentially this does not imply island-wide therefore option of a staggered election is possible)
What Elections Commissioner cannot do is DENY voters to exercise their franchise. If South Korea with higher cases of covid-19 including 240 deaths went to polls with over 66% turnout and completed an election, there is no reason why Sri Lanka’s Elections Commission cannot hold elections under the same circumstances.
Shenali D Waduge