Aug 06, 2018

Yahapalana Democracy? Not even Procedural

The role of the EC in holding elections to LG bodies proved it beyond doubt

Why the EC has to abide by the existing laws and hold elections and need not wait for new laws

for once Prof. G.L has said something worth discussing. He had told media last Monday, his party, the Sri Lanka Podujana Peramuna (SLPP) would file a petition in the Supreme Court requesting a Writ against the Elections Commission (EC) over its failure to hold elections for the dissolved Provincial Councils.

The Sabaragamuwa, North Central and the Eastern Provincial Councils stand dissolved for 10 months now, since September 2017.

In two months from now, the North, Wayamba and the Central Provincial Councils would stand dissolved.

He has told media, legal action would be instituted when the Court vacation comes to an end in late August.

Reason for not instituting legal action immediately as he says is because; it is only a week more for Court vacations to begin.

For a politically valid intervention, to stay mute for a month is too cheap a ploy to buy. For a legal luminary in fulltime politics, a week would be more than enough, if the statement made is firm and genuine.

Almost two months ago President Sirisena addressing his faction of the SLFP on June 2 had said the PC elections would be held before the year-end.

The UNP decided at its Working Committee last week to request the EC to hold the PC elections “without delay” (!) either on the old or the new system of electing members.

By then, the Chairman of the Commission Mahinda Deshapriya had on April 25 (2018) told the media (CDN) the Commission would hold elections to PCs in December, once the legal and Constitutional “hindrances are swiftly resolved”.

Neither had they been resolved “swiftly” during the past three months. Nor has the Government chosen any of the four options Deshapriya told the CDN (Ceylon Daily News), Parliament could adopt, to have early PC elections.

“Firstly, Parliament can approve the delimitation report as it is, with a two-thirds majority.
“Secondly, MPs can opt to revise the report by a committee appointed by the Prime Minister. If not, they can change the 50-50 ratio and prepare an early and speedy delimitation report again.

“Or they can go back to the previous Preferential Ratio (PR) vote system,”

He told the CDN, that if Parliament could decide on any one of those options, the EC could hold elections in December before the GCE O/L examinations began.

Now it is August and over three months after the options were spelt out by Chairman EC. No decision had been taken by the Government or by the two main allies in Government, the UNP and the SLFP of President Sirisena as to what option they would go with.

Instead, the UNP wants the EC to hold elections anyway it can and President tells his men they would be December.

In end June the same Minister, who kept tearing off calendar pages one after another for the LG elections, tells the new Delimitation Committee in the presence of Speaker Karu Jayasuriya, it would be December (2018) when the Government could be ready with a Road Map for holding PC elections.
He wouldn’t surely decide on a Road Map for December, on his own. He is definitely in consultation with the President and the PM, is playing it soft with President, while on a collision course on many issues.

As it goes, PC elections will not be held end 2018 with only a Road Map proposed. The hurdle President Sirisena fears to hold PC elections is no doubt the MR Factor.

As Finance Minister Samaraweera’sGam Peraliya that’s rolled out with gusto to be given a fillip with a populist budget for the year 2019 in November indicates, the UNP is readying itself for the 2020 January Presidential Election and not for PC elections in December.

For Mahinda Rajapaksa, who has in his hands the political network at the local level after LG polls, needs to have with him the next level of political networking at the provincial level to push for Parliamentary Elections in mid or late 2019.

There certainly is a difference in calculations within the JO too. Loners like Weerawansa and Gammanpila would want the Presidential and Parliamentary Elections as constitutionally scheduled for 2020 January and anytime after 2020 February, respectively.

They need to be of importance in a Presidential poll to successfully contest Parliamentary Elections thereafter.

Yet, MR’s strategy that is worked on by Basil Rajapaksa is often heard through JO stalwarts like Dinesh Gunawardane and Vasudeva Nanayakkara, who also talk of Parliamentary Elections.

This Government cannot rule a country and that needs to be changed before it is too late, goes their main argument.

The Colombo protest last Wednesday led by the JO targeting the Government as anti-people is perhaps a beginning.

At the rate, the Government is fumbling with every issue without clear decisions made and then the two partners in Government getting into contradicting positions on almost all issues and mega corruption no less than during the Rajapaksas, the frustration building up in urban and semi-urban societies is what MR seems to be banking on.

He perhaps believes there will be the last straw on the camel’s back when people would want a change of Government before a change of presidency.

That’s when the PCs also become important for MR.

It would be a proverbial walk behind the goat, for MR to wait for his SLPP President Prof Peiris to go to Courts to provide him with the PC elections without any further delay.

It was this same Professor who was reported in the media a month ago on July 2 saying his SLPP would sue the FCID, the CID, the Rupavahini Corporation and the Associated Newspapers (Ceylon) Limited for a series of alleged defamatory stories that claimed China Harbour Engineering Limited had in 2014 provided US$ 07 million for Mahinda Rajapaksa’s Presidential Election campaign.

At the same media briefing, he was also reported as having said the SLPP would take legal action against the New York Times, for publishing similar defamatory allegations. He doesn’t seem to have done what he said he would, and taking time over Court vacations seems, he would go the same way with this proposed legal action against the EC as well.

In short, it would not be anything more than his statement to media.

Yet, the fact remains, for once, his argument is on solid grounds. Chapter I Article 03 of the Constitution is clear about the right of franchise being an inalienable right of people’s sovereignty.It says”

“In the Republic of Sri Lanka sovereignty is in the People and is inalienable. Sovereignty includes the powers of Government, Fundamental Rights and the franchise.”

That, therefore, is a basic, Fundamental Right of the people, the EC is constitutionally bound to protect and give validity to.

Read along with article 104B (1) of the Constitution, Article 104B (2) says,

“It shall be the duty of the Commission to secure the enforcement of all laws relating to the holding of any such election or the conduct of Referenda and it shall be the duty of all authorities of the State charged with the enforcement of such laws, to co-operate with the Commission to secure such enforcement.”

But has the EC been living with the Constitutional mandate? Sadly not as an Independent Commission constituted under Amendment 19.

The role of the EC in holding elections to LG bodies proved it beyond doubt. According to the Constitution, the EC should treat franchise as an “inalienable. Sovereign” Right of the people and thus should “secure the enforcement of all laws relating to the holding of any such election”
It means ‘laws’ that are valid at the time an election should be duly held is what the EC has to abide by.

It more than implies the EC need not wait for “new laws” the Government is contemplating in bringing or are still in the making.

Thus, if Parliament has not made required law to hold elections on the mixed system of PR (Proportional Representation) and FFP (First-Past-the-Post) with whatever gender representation and with the new delimitation report approved in Parliament at the time the PCs were dissolved, it only means the existing law that allows elections on the PR system is the law the EC has to hold elections to those PCs.

Instead, the EC is playing with a vacillating and hesitant Government through publicity stunts, proposing options to keep the PC elections postponed, violating its own mandate in the process.

It is the EC that should now be held totally responsible for denying the people their right to elect representative bodies.

It is the EC that aids and abets the Yahapalana Government to further erode democracy when it is there to safeguard democracy.

And thanks to this EC and Yahapalanaya, we don’t even have the procedural democracy there was under Rajapaksa. Perhaps they are making the ground easy for Rajapaksa to run a totalitarian rule if he returns.