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Provincial Councils polls determination by end August: SC
After hearing over 10 submissions on the Presidential Reference (PR) seeking a Supreme Court (SC) ruling on the possibility to conduct the much delayed Provincial Councils (PC) polls, the 5-member Bench comprising Chief Justice Jayantha Jayasuriya, Justice B.P. Aluwihare, Justice Sisira J. de Abrew, Justice Prasanna S. Jayawardena and Justice Vijith K. Malalgoda, on Friday announced it will convey its determination to the President before the end of this month.
In his PR, President Maithripala Sirisena sought the opinion of the SC, on the possibility of holding PC polls, in view of the Review Committee failing to submit its report to him, in accordance with Sub Sections (13) and (14) of Section 3A of the PC Elections Act No. 2 of 1988, as amended by Act No. 17 of 2017, whether he can issue a proclamation publishing a new number of electorates, boundaries and names assigned to each electorate, as created in the National Delimitation Committee (NDC) report submitted to the Minister of Provincial Councils and Local Government, last year.
The PR also inquired whether, in the absence of such inability to hold such PC elections, in terms of the present Law, PC elections can be held under the Law that was in force, prior to the enactment of the PC Elections (Amendment) Act No. 17 of 2017, in view of Section 6(2) of the Interpretation Ordinance.
As of now, the 4-year mandate of 8 PCs expired and the remaining one is to expire in the coming months. Three of the PCs terms expired over 2 years ago, the SC was told.
At least 13 intervening petitions filed on behalf of civil society organisations, individuals such as Ven. Elle Gunawansa Thera, MPs Wijeyadasa Rajapakshe, M.A. Sumanthiran and Senior Lawyer Kalyananda Thiranagama were supported on Friday.
Representing Elle Gunawansa Thera, Sanjeeva Jayawardena P.C. brought to the attention of the SC, that the current ‘deadlock’ came into being after the report of the NDC was defeated in Parliament, with even then subject Minister of Provincial Councils and Local Government voting against it.
The SC was told that, soon after the NDC report was rejected by Parliament, a Review Committee, headed by the Prime Minister was appointed, but this Committee has yet to submit its report to Parliament.
Justice Prasanna Jayawardena intervened to ask whether the issue of PC polls being delayed for years was raised in Parliament, in the form of any debate or inquiries in the past, since the NDC report was rejected by the majority of the MPs. The SC was told that a Private Member’s Bill was submitted to the Standing Orders of Parliament this month.
Making oral submissions to SC, MP M. A. Sumanthiran P.C. said he is taking the position of negativity to the PR, where he made it clear that, if the PC polls are to be held, it requires legislative amendment, as the Law has come into effect, and it is the responsibility of the Legislature, not the Presidency.
He also informed the SC that, in his capacity as an MP, he had submitted a Private Member’s Bill to Parliament last week, introducing an amendment to the PC Elections Act, by repealing Act No.17 of 2017, to enable elections to be held without any further delay, as the Government failed to take any action on the same draft amendment he handed over earlier. He also informed the SC that, once the amendment is passed, repealing the current one, Parliament can, thereafter, discuss future reforms to the Elections Law.
Further, MP Sumanthiran P.C. argued that, he and his party Ilankai Thamil Arasuk Katchi (ITAK), represented in Parliament, are of the view that it is more important to hold the PC Elections on time under whatever system, than reach an agreement with regard to the system itself, and they have participated in all meetings convened in Parliament to resolve the stalemate encountered, after Parliament rejected the NDC Report.
Justice Sisira de Abrew intervened to note that Mr Sumanthiran was also absent during the vote on the debate of the NDC report last year.
As an intervenient Petitioner representing the Center for Policy Alternatives (CPA), Senior Lawyer Viran Corea said that, in view of the Review Committee failing to submit its report to the President, in accordance with Sections 3A (13) & (14), of the PC Elections Act No 2 of 1988, the President is empowered to issue a proclamation publishing the Report to the NDC submitted to the Minister of Provincial Councils and Local Govt.
He argued that, as delay in elections is a violation of the Sovereignty of the People, if such a proclamation is issued, PC Elections for the relevant PCs should be held immediately, without further delay.
Attorney-at-Law Suren Fernando, representing United National Party General Secretary Akila Viraj Kariyawasam, questioned the independent role of the 5-member NDC that included 3 members of theNational Delimitation Commission. The Review Committee comprised of MPs tasked to look into the discrepancies of demarcation and make alterations to the NDC report.
Wijeyadasa Rajapakshe P.C. noted that, the ongoing delay in holding PC polls, is due to the failure of the Legislature, with the President empowered under the Constitution to seek an opinion from the SC, whenever a need arises, as Election Commission cannot seek such opinion directly.
Additional Solicitor General Mrs Indika Demuni de Silva, representing the Attorney General’s Dept, said her Department had submitted a comprehensive written submission focusing on the legality of both sides of the argument. Noting that the Law passed in Parliament comes into effect only after the Speaker certifies it, she added that, however, certain sections within such Laws can be preserved to come into effect after a limited period of time.