PC polls: What the President wished, the Premier delivered

Rapprochement between SLFP and UNP on amendment Bill to hold provincial council elections on mixed system; thrilling efforts to get two-thirds majority

Attorney General advises Speaker that two-thirds majority alone is sufficient to pass the amending Bill

Election Commission chairman Mahinda Deshapriya angry he was not consulted, threatened to quit; Delimitation Committee to be appointed to carve electorates

Hopes of elections this year to three Provincial Councils – North Central, Sabaragamuwa and Eastern – were buoyed by last Tuesday’s announcement of the Supreme Court determination, but evaporated just hours later.

Ruling coalition leaders, not in favour of PC polls, adopted other counter measures that will now cause an indefinite delay. It came during a tense, behind-the-scenes political drama. Members of the Elections Commission threatened to resign. Even President Maithripala Sirisena, who was in New York to attend the 72nd sessions of the UN General Assembly kept himself busy from his hotel suite appealing for help from minority parties that backed his Government. It paid off.

This came after the SC determination, by majority 2-1 vote on the 20th Amendment to the Constitution became public last Tuesday. Contrary to expectations of coalition leaders, the Court held that the three clauses of 20A (i.e. 2, 3 and 4) were inconsistent with the Constitution. Hence, the Court held that it required not only a two thirds majority vote in Parliament but also the approval of the people at a referendum. In essence the ruling affected the entirety of 20A. Clause 1 only referred to “This Act may be cited as the Twentieth Amendment to the Constitution.” Clause 4, the last one, contained the usual interpretative clause which said “In the event of any inconsistency between the Sinhala and Tamil texts of this Act, the Sinhala text shall prevail.”

If there was no timely action on their part this week, coalition leaders realised, that the Elections Commission would gazette the date for nominations for the three PC elections. They knew that the Commission would thereafter set a date in December this year for the polls. Conducting a referendum to thwart the move was a high risk they did not wish to take. Hence they embarked on other hurried measures.

What 20A sought was to introduce a provision to enable elections to all Provincial Councils to be held on the same date. For this, the Government wanted to empower Parliament to determine the date (which is also referred to as “specified date’) on which PCs shall stand dissolved. Another provision was to include the term of office of any Provincial Council ending prior to the specified date to be deemed, to be extended. The term of any PC which continues beyond the specified date to stand dissolved on a fresh specified date. The third and final amendment was to enable Parliament to exercise powers of a dissolved PC until the specified date is determined.

That the SC held that 20A was not consistent with the Constitution was bad news for the coalition leadership. The first indications of their course of action emerged from President Maithripala Sirisena’s side. He did not favour the idea of an early PC poll. As is customary, he was the recipient of a sealed copy of the SC determination sent to Parliament. Even before Speaker Karu Jayasuriya could formally announce the contents on Tuesday, they were on overdrive mode examining counter measures. That these would centre on a course of action in Parliament became clear when Sirisena decided that all MPs backing the Government should remain in Colombo. Even Foreign Minister Tilak Marapana, who was a last minute addition to his delegation had to stay put in Colombo. A group of MPs left for New York only on Thursday night after the vote.

Coalition leaders had by then decided on their course of action. Telephones hummed between Sirisena in New York and Prime Minister Ranil Wickremesinghe in Colombo. They resurrected a three-page “Provincial Councils Elections (Amendment) Bill which was presented in Parliament on July 27 by Provincial Councils and Local Government Minister Faiszer Musthapa. The purpose of this Bill, which lay in limbo, was to “specify the number of female candidates to be included in a nomination paper” for PC elections. It sought to set out that of the candidates nominated for PC elections, not less than 30% should be females. It also made provision to reject any nomination paper which does not contain the specified number of female candidates. The three page bill had amendments that ran into some 30 pages. Speaker Karu Jayasuriya signed his assent on Friday night giving legal effect to the new laws passed by Parliament on Thursday.

Caught by surprise that they were not consulted, the Election Commission Chairman Mahinda Deshapriya rushed a letter to Speaker Jayasuriya. In that strong letter, he said, the Commissioners proposed to hold a news conference and later hand in their resignations. Speaker Jayasuriya was to extend his apologies at a meeting on Friday with Deshapriya, the Chairman of the Delimitation Commission Pavalingam Kanagaratnam, Local Government and Provincial Council Minister Faiszer Musthapa and his Ministry Secretary Kamal Pathmasiri. He sought an assurance from them that the Local Government elections would be held in January next year and the Provincial Councils before March, also next year.

As revealed later in these columns, some of the provisions in the new law would lead to a time consuming exercise thus obviating an early PC poll. One example is the appointment of a five member Delimitation Committee within two weeks of the Bill becoming law by the President to “divide each administrative district into such number of electorates as corresponds to 50% of the total number of members to be elected from such administrative district.” The President will appoint the Chairman and the five persons will represent the “pluralistic character of Sri Lankan society, including professional and social diversity” by an order published in the gazette.

The Committee shall assign names to each electorate in the division of the administrative districts. Where it appears to the Committee that there is, in any area of an administrative district, a substantial concentration of persons united by a community of interest, whether racial, religious or otherwise, but differing in one or more of respects from the majority of the inhabitants of the area, the Committee may make such division of the administrative districts into electorates. In making such division, the Committee has been asked to pay due regard to (a) the desirability of reducing to the minimum the disproportion in the number of persons resident in the several electorates of the administrative districts within the Province, and (2) the geographical and physical features of the electorates. The Committee has also been vested with powers to create constituencies which will be entitled to return more than one member.

The provision to have a new Delimitation Committee has also raised an issue. Speaker Jayasuriya, according to Parliament sources, met Prime Minister Ranil Wickremesinghe to urge him to give the task to the existing constitutionally empowered National Commission for Delimitation. These sources said Jayasuriya said it would be an “insult to the Constitution” if a separate Delimitation Committee is appointed. He had said that if there was a requirement, two more members could be added. The Premier had agreed to consider the matter, the sources added.

A ‘Joint Opposition’ delegation led by its parliamentary group leader Dinesh Gunawardena also met Premier Wickremesinghe to protest against the manner in which the amendments were being rushed. The Premier had replied that it was urgent Government business and had to be taken up. He quipped, perhaps in humour, that they now knew how to take up such urgent business.
Under the new law, the Delimitation Committee which has been legally tasked to “endeavour to arrive at a consensus in dealing with matters” is to be called upon to submit its report to the Minister within two weeks of the receipt of such report and table it in Parliament for its approval by not less than a two thirds majority. If there is no such approval within one month, the Speaker has been empowered to appoint a Review Committee of five persons headed by the Prime Minister. Such a Committee will have the power to cause any alteration to names, numbers and boundaries of any electorate. Thereafter, the President is empowered to issue a Proclamation publishing the new number of electorates.

Thus, with this new development, PC elections this year for the three councils could not be held as planned by the Election Commission. As a result there is uncertainty now over the time period. This is notwithstanding Speaker Jayasuriya’s plea to the Chairman of the Election Commission to conduct the local polls in January next year and the PC polls before March of the same year.
Issues over this also came to the fore when political party representatives met Speaker Jayasuriya last Tuesday to discuss parliamentary business for the week. When both the UNP and SLFP (pro Sirisena) representatives said they wanted to place on the Order Paper for Wednesday the Provincial Councils Elections Bill together with a string of amendments, Minister Rauff Hakeem, leader of the Sri Lanka Muslim Congress (SLMC), was enraged. He charged that the Government (of which his party is a constituent member) was trying to postpone elections. He said it was “undemocratic and unfair.”

He was to invite a barrage of criticism. Minister Mahinda Samarasinghe, one of three representing the SLFP, said what they were discussing was Government business. It took precedence over other matters. The other two members were Ministers Nimal Siripala de Silva and Sarath Amunugama who backed Samarasinghe. The UNP’s main representative, House Leader and Minister Lakshman Kiriella, who supported Samarasinghe’s position, explained that their move was part of a larger agenda and had no sinister motives. Like in elections to local bodies, they needed to have a system for PCs too. This was why they had proposed PC polls in one day and called for a mixed electoral system earlier.

Hakeem charged that both Samarasinghe and Kiriella were trying to “bulldoze their way through.” He asked “how can we debate this?” Samarasinghe laughed off the remarks and replied that the amendments would be available the next (Wednesday) morning and Hakeem could see them. Tamil National Alliance frontliner M.A. Sumanthiran charged that Hakeem only looked at himself and did not see “the larger picture.” He noted “if we wanted, we could have a Tamil Chief Minister.” He was alluding to the Eastern Province where the Chief Minister is Nazeer Ahmed from the SLMC. Janatha Vimukthi Peramuna (JVP) leader Anura Kumara Dissanayake pointed to Hakeem and declared that the SLMC had contested under an alliance (United National Front) on the basis of a list put forward by the alliance. The remark suggested that being in the alliance the SLMC could not now articulate a different position. At the end of the discussion, Speaker Jayasuriya agreed that the Bill could be listed and debated on Thursday.

It was not only Hakeem who was unhappy. His political rival Rishad Bathiuddin, leader of the Sri Lanka Makkal Katchi (or People’s Party) was also strongly opposed to the debating of the Bill. Some UNPers believed Hakeem had followed suit for fear that his party would be isolated from the stance taken by Bathiuddin. Hence he joined in the protest. On Tuesday night, they met Premier Wickremesinghe at ‘Temple Trees’ to discuss the situation. He had appealed to them not to go ahead on an issue on which there is general agreement.

By Thursday, the Bill came before Parliament. Yet, both Hakeem and Bathiuddin had not changed their mind. There were parliamentarians representing up country electorates who were supporting their position. At one point, SLMC members withdrew from Parliament. Opposition MPs complained on Thursday that some of the amendments the Government wanted to introduce were unconstitutional. It was around noon when Speaker Jayasuriya had a meeting with Attorney General Jayantha Jayasuriya. The AG had opined that the Bill and the proposed amendments required a two thirds majority vote for passage in Parliament. He was also of the view that the amending legislation need not be placed before Provincial Councils for approval. Thereafter, UNP and SLFP (pro-Sirisena group) leaders redoubled their efforts to muster a two thirds vote.

This is whilst Premier Wickremesinghe continued his negotiations with those opposed to the Bill. He also kept telephoning Sirisena in New York to keep him updated. Thereafter, Sirisena took over, engaging in long-distance telephone diplomacy. He began calling Hakeem, Bathiuddin and TNA leader R. Sampanthan. To some, he made more than one telephone call to appeal for help and thus won the day. As one Cabinet Minister described “President Sirisena was the man of the match and Prime Minister Wickremesinghe was the best batsman. The issue was resolved.” He said by late Thursday afternoon with no settlement in sight, they had to persuade their parliamentary colleagues to make speeches until matters were resolved. Some even lengthened their speeches to buy time.

The minority parties also won a concession. The President was to give them an assurance that their interests would not be jeopardised. One concession has already been extended. In terms of electoral arrangements for PCs, it was originally decided that there should be 60 percent elected on the first-past-the-post system and the remainder through the proportional representation system. It has now been changed to 50 % in each case. That raising of the cut off point gives the smaller parties the chance of having more members under proportional representation. Another area where agreement was reached was to conclude delimitation of electorates within a province within four months instead of six.

Some of the highlights of the amendments passed and now law are:

• Any recognised political party or any group of persons contesting as independent candidates may for the purpose of any election of members of Provincial Councils for any administrative district, submit two nomination papers setting out (a) the names of each candidate nominated in respect of each electorate (Electorate List) and (b) the names of additional candidates in respect of such administrative district as is equivalent to the number of additional members entitled to be elected from such administrative district (District List).
• Where an equality of votes is found to exist between any two or more recognised political parties or two or more independent groups, and the addition of a vote would entitle the nominated candidate of one such recognised political party or independent group to be elected as the Member of such electorate, the determination of the recognised political party or independent group to which such additional vote shall be deemed to have been given, shall be made by lot drawn in the presence of the chief counting officer, in such manner as he shall determine.
• Additional members elected for all the electorates of the administrative district shall be apportioned in the manner provided for – The total number of valid votes received by all the candidates of each recognised political party and independent group in the administrative district shall be divided by the total number of members to be elected and returned to Provincial Council from such Administrative District. The numbers resulting from such division shall be referred to as “the qualifying number.”
• The aggregate of the votes received by the candidates of each recognised political party and independent group in the respective electorates shall then be divided by the qualifying number, in order to ascertain the number of persons entitled to be elected and returned as members of the Provincial Council, from such Administrative District. Where the number ascertained by this method is an integer and a fraction, the integer shall be deemed to be the number.
• There remain a further number of members to be returned under the proportional representation system, such remaining number shall be allocated on the basis of the highest fraction received by each recognised political party or independent group.
• The Commissioner (now the Chairman of the Elections Commission) shall ensure that twenty five per centum of the total number of members to be elected and returned from each administrative district within a Province shall be women members; provided that, where the number constituting twenty five per centum of the total number of members is an integer and fraction, the integer shall be deemed to be the number which shall constitute twenty five per centum. A Provincial Council constituted in terms of this Act, shall not be deemed to be unlawful only by virtue of an inability to comply with.

Elections Commission Chairman Mahinda Deshapriya publicly lamented Thursday night that neither he nor the Commission had been consulted over the contents of the Provincial Councils Elections (Amendment) Bill that was passed in Parliament on Thursday. Creditably he made those remarks in a talk show hosted by the state run Independent Television Network (ITN). He had come straight from his daughter’s wedding at Water’s Edge to participate in the show. He said that he had seen the Bill only around 3 p.m. on that day (Thursday) after Speaker Jayasuriya spoke to him on the phone and invited him to attend Parliament. That Bill too has been changed again.
Asked why the Commission was not consulted, Deshapriya replied “That is not an issue for us. We do not have the responsibility to make laws. Our job is to conduct elections. That is why we pointed out 56 technical reasons on why the elections cannot be held. Always when the Bill is drafted in English and translated to Sinhala there are mistakes. We went to Parliament on the invitation of the Speaker. But the Ministry of Local Government and Provincial Councils did not invite us. Since we are concerned with these issues we went to Parliament. This may not be deliberate, but may be due to the rush these things could happen. If the process of delimitation started earlier this could have been completed and elections held.”
Here are some relevant excerpts of answers Chairman Deshapriya gave:
ON ELECTIONS TO LOCAL BODIES: The Elections have been delayed not due to the fault of the Election Commission. The elections in the East which were due was not held, as a Bill giving effect to a new mixed electoral system effective from January 2013 was introduced. Therefore an election could not be held without knowing the boundaries of the wards. The Jayalath Committee was appointed to demarcate the boundaries.
This Committee took two years and 10 months to submit its report in August 2015. As the then Commissioner of Elections I submitted the technical defaults of the report. In order to correct these technical issues a Bill was submitted to Parliament in August 2017. One of the reason for the delay was the technical issues in the Bill submitted in 2012.
Also each local council should have its boundaries and the number of members to be elected. The Minister of Local Government and Provincial Councils should gazette it. For instance, in the Colombo Municipal Council, the number of members increases from 53 to 85. That was not gazetted. Also there was another Bill to increase women representation in local councils. This too needs to be gazetted.
In order to correct the shortcomings in the Jayalath Committee, the Ashoka Peiris Committee was appointed. Initially they were due to give the report in three months. Eventually they gave it in 14 months. Thereafter the number of members were gazetted to come into effect from July 1, 2017. That has been extended to be effective from October 1, 2017. The Minister also now needs to re-gazette the number of members to be elected in view of the revision of the electoral system.
We pointed out that the Local Government election laws needed to be amended, and that has not been done so far and needs to be done. It seems these will be completed by October 9. The Local Government Ministry secretary told us this. This is provided the Gazette notifications are issued in time. If the Gazette is issued in time elections can be held in January. If the gazette is not issued, elections may not be held. The Batticaloa local elections are due from 2013 and it is now September 2017. Therefore there is no use of asking us the question about the delays. The ball is not in our court yet. Sometimes elections may not be held. I hope the elections will be held before December 31, next year.
If it cannot be held by that time I will resign. If the elections are not held before December 31, 2018 I will resign from the Chairman’s position as well as membership of the Commission.
ON REPEATED POSTPONEMENT OF ELECTIONS: Any postponement of an election is against democracy. There is no difference between a minor fault and a major fault. There is no difference between slaughtering a small animal and a large animal. It is like saying that it is not a sin to eat sprats, but it is a sin to eat beef.
DELAYS IN CONDUCTING ELECTIONS: Among the major delays in conducting elections have been the local elections not being held from 1969 to 1978. The term of Parliament which should have ended in 1975 was extended to 1977. The then opposition leader J.R. Jayewerdene resigned from his seat in protest and contested a by-election. To do that we do not even have by-elections. The Parliamentary elections due in 1983 were also postponed, but that was by a referendum in which the people took part. However, the then Opposition protested about it. Now elections are being postponed at a time when two parties which opposed postponement of elections are working together…..
THE 2013 ELECTIONS AND CURRENT ELECTIONS BEING DELAYED ON GROUNDS OF DELIMITATION: Elections could have been held and then the de-limitation process could have begun. Here the elections are being delayed on the grounds of delimitation.
ON PROVINCIAL COUNCIL ELECTIONS, CONDUCTING POLLS IN ONE DAY: If PC elections can be held on one day, it is a good thing. But in the past it has not been held on the same day. It is a good move. That is the ideal situation. What happens if there is a fresh election or when the budget is passed?
As is clear from this week’s developments, coalition leaders were confident they could seek the passage of 20A without a referendum. They hoped this would empower them to further delay the PC polls. The SC determination clearly paved the way for the Election Commission to conduct polls to the three Provincial Councils whose terms would have ended this month. That was not to be. The coalition leaders beefed up the Provincial Council Elections (Amendment) Bill to buy time indefinitely. It is also clear that those minority parties which raised strong objections relented and accepted the assurances of Sirisena to address their grievances. Thus, they won a two thirds vote which the Attorney General said was necessary. A little known fact was Arumugam Thondaman, leader of the Ceylon Workers Congress, and Muthu Sivalingam of the UPFA, voted in favour of the Amendment. Both are parliamentarians from the Nuwara Eliya district.
A silver lining for the coalition over this week’s events is the rapprochement between the Sri Lanka Freedom Party (SLFP) and the United National Party (UNP). What President Sirisena wished, his Prime Minister Wickremesinghe delivered. Whether such a joint exercise will be a stepping stone for a ‘kiss and make up’ in the long term remains a critical question.
Of course many a hurdle stands in the way. The SLFP wants the Executive Presidency abolished, The UNP, on the other hand, wants it retained. The ongoing inquiry into the Central Bank bond scam has remained an irritant for the UNP. Whether the latest rapprochement is only a temporary tryst or one that is long lasting only time will reveal.