The most significant legal battle since independence

In the past few days, the government has been conveying the impression to the public that they are going through the final motions necessary to hold the local government elections. Amendments to the local government laws were passed by Parliament recently and the Chairman of the Elections Commission was heard saying that all that needs to be done now is for the minister to gazette the number of representatives in each local government area to be elected on the 40% proportional representation quota and after that the Elections Commission will be able to call for nominations. With this government however, nothing can be taken at face value. Even if the nominations are handed in, that is no guarantee that an election will be held. The elections to the Puthukudiirippu and Maritime Pattu Pradesheeya Sabhas were delayed for years and finally never held due to litigation after the handing of nominations.

With the Herculean effort put into getting the elections to the provincial councils postponed, the government is in the happy position of being able to go on till the last quarter of 2019 without holding any election at all, if they so wish. Of course there will be protests and public anger at the indefinite postponement of elections, But this is not a government that has shown any sensitivity to public opinion. We see street protests and near-riot situations on a daily basis but the government seems oblivious. The agitation for an election will be just another noise added to the cacophony. So long as the government does not hold an election, they will be able to hold onto power. But if they hold an election and lose – especially a country-wide election like the LG elections, or even come close to losing, every demonstration will become an effort to force the government to resign.

So an election at this stage simply does not make political sense for the yahapalana government especially after all the contortions they performed to get the PC elections postponed just weeks ago. Furthermore, if an election is held and the President’s party gets wiped out, that will drastically affect the legitimacy of the entire government. If they are going to hold the LG elections in January next year, all the contortions they performed up to now will come to nought. It would have been better for this government to have held elections earlier rather than later. If they had held the local government elections when they were due in the first quarter of 2015, the government would no doubt have done much better than they would now. The reason why they delayed the local government elections and changed the law at the last minute to avoid holding the PC elections was due to the fear of defeat. If there was any risk of defeat now, it will only have increased by next January.

One gets the distinct impression that these feints being made to hold the long overdue elections to the local government institutions is to hoodwink the Supreme Court which is now considering several fundamental rights applications filed by several parties including the former Chief Justice Sarath N.Silva, Prof. G.L.Peiris and Udaya Gammanpila against the manner in which the provincial councils law was amended to avoid holding elections. The issues raised in these fundamental rights petitions are such that even if the SC merely grants leave to proceed on these petitions, it will be a major blow to the legitimacy of this government. All these petitions hinge on the infringement of the franchise. Perhaps the government feels that by making seemingly conclusive moves to hold an election, they can create a situation where the SC will deny leave to proceed on the grounds that firstly they do not have the jurisdiction to question the proceedings of parliament and that anyway, the infringement of the people’s franchise is being resolved by the holding of the LG elections in January.

In fact Speaker Karu Jayasuriya was trying to reassure the public that the LG elections will be held in January and the provincial council elections in March. If the government is able to mislead the Supreme Court into refusing leave to proceed on the grounds that the infringement of the franchise is being resolved, thereafter there is the strong possibility that they will find some excuse not to hold the polls even after nominations are accepted. It should be borne in mind that the government put off the PC elections by amending the PC elections law when the attempt to bring in the 20th Amendment failed.  Recent experience shows that the courts have issued stay orders on the poll being held even after nominations were called to the Puthukudiirippu and Maritime Pattu Pradesheeya Sabhas. When it comes to the postponement of elections, nothing is beyond this government. Minister Faizer Mustapha is already talking about the need to split up two large local government areas into several smaller units.

 

Former CJ’s line of argument

Be that as it may, the postponement of the provincial council election is now before the Supreme Court. The first fundamental rights case case fied by former Chief Justice Sarath Nanda Silva under article 126 of the Constitution against the infringement of his right to vote cited Attorney General Jayantha Jayasuriya, Speaker Karu Jayasuriya, and the Elections Commission as the respondents and the former CJ appeared in person on his own behalf – something that had never happened in the post independence history of this country or indeed in the history of the Supreme Court from British colonial times – so grave is the issue at hand. The former CJ petitioned for relief under Article 12(1) which guaranteed the equal protection of the law in relation to executive or administrative action.

Sarath Silva’s petition argued that the Sovereignty of the People is safeguarded by checks and balances that apply to the organs of government and that the legislative power exercised by Parliament, is subject to checks intended to safeguard the Sovereignty of the People and the Rule of Law. He drew attention to the requirement in Article 78(1) of the Constitution that, “Every Bill shall be published in the gazette at least seven days before it is placed on the Order Paper of Parliament” and that this was to make the exercise of legislative power a public and transparent process from its very inception, whereby the Sovereign People are fully informed of the intended legislation. He pointed out that the Government  realizing the importance, necessity and value, of such public disclosure extended the period of seven days to fourteen days by section 18 of the Nineteenth Amendment to ensure that people have a longer period of notice.

Once a Bill is gazetted in this manner, Article 121(1) of the Constitution gives the right to any citizen to invoke the jurisdiction of the Supreme Court to challenge the constitutionality of that piece of intended legislation within one week of the Bill being placed on the Order Paper of Parliament and when such a petition is filed in the SC, the proceedings in Parliament in respect of the Bill are stayed for a period of three weeks to enable the Supreme Court to exercise its Constitutional Jurisdiction in respect of the published Bill.

It was pointed out that in terms of Article 77 of the Constitution,  the Attorney General had to examine every Bill and express an opinion as to its constitutionality including whether any provision of the Bill requires to be passed by 2/3rds majority. Article 79 imposes a duty on the Speaker to endorse a certificate on every Bill passed by Parliament to the effect that it has been duly passed by Parliament the emphasis being on the word ‘duly’.

The Certification by the Speaker is an executive act and the Speaker is duty bound to satisfy himself that the Bill published in the gazette and the Bill passed by Parliament has substantially the same legal effect.

 

The sequence of disreputable events

The former CJ recounted the events that took place with regard to the piece of legislation under consideration – a Bill to amend the Provincial Councils Elections Act so as to increase female representation in the PCs was published in the Government Gazette of 07 July 2017. On 20 September 2017 this Bill was taken up for the Second Reading by Parliament. Upon the completion of the Second Reading the Bill was referred to a Committee of the whole Parliament in terms of Standing Order 52. The Committee Stage in terms of Standing Order 55 is a line by line reading of the Bill approved at the Second Reading.  At the Committee stage, the Minister in charge of the subject moved that (in a short Bill that did not go to more than 30 lines) that lines eight to 12 be left out and again that lines 14 to 26 be left out resulting in a situation where all the operative provisions as to the female quota of candidates, which was the original content of the Bill was removed.

And in its place, wholly new provisions running into dozens of pages were substituted. An entirely new system of elections based on constituencies has been introduced at Committee Stage which is intended only to be a line by line examination of the Bill passed at the Second Reading. It appears that at the Third Reading the original Bill passed at the Second Reading has been totally ignored and the enactments smuggled in at the Committee Stage have been approved instead. Thus the Bill passed at the Third Reading is not the Bill passed at the Second Reading.

The former CJ found fault with the Attorney general for shirking the duty imposed on him by the proviso to Article 77(2) of the Constitution to examine the constitutionality of the process at the Committee Stage and to function effectively as an executive check on the exercise of legislative power. The former CJ stated in his petition that it should have been manifest to the AG that all the operative clauses of the Bill published in the gazette and in respect of which the Attorney General had expressed his opinion and which was passed by Parliament at the Second Reading were effectively removed by the amendments accepted at Committee Stage and the original Bill had ceased to exist.

The former CJ has stated that the AG has legitimized these provisions smuggled in behind the back of the Sovereign People by purportedly examining their constitutionality and that he has thereby abdicated the duty imposed on him by the Constitution to function as an effective check on the exercise of legislative power by Parliament. Furthermore, the former CJ pointed out that the duty imposed by Article 79 on the Speaker to endorse a certificate that the Bill has been ‘duly’ passed by Parliament operates as an executive check on the exercise of legislative power by Parliament and that it is incumbent on the Speaker to bring his independent mind to bear on the passage of the Bill published in the gazette.

As in the case of the AG, it should have been obvious to the Speaker that the Bill published in the gazette, placed on the Order Paper of Parliament and passed by Parliament at the Second Reading was mutilated by the deletion of all the operative clauses in it at the Committee Stage and the inclusion of completely new and extensive additions that had not been gazetted, not placed on the order paper of Parliament and not passed at the second reading.

These amendments should have been published as a new Bill in compliance with Article 78(1) of the Constitution to notify the People about its contents and to enable any person to challenge the constitutionality of the Bill before the SC. The former CJ argued that the Speaker’s certification of that Bill in terms of Article 79 is therefore ultra vires and ab initio void. Furthermore it was pointed out that the Government attempted to postpone elections to the Sabaragamuwa, North Central and Eastern provinces by means of the 20th Amendment to the Constitution which was declared by the SC to require a referendum.

Thereupon the Government decided not to proceed with the said Amendment and decided to use the Bill relating to the quota of female candidates at PC elections in order to make wide ranging amendments to the Provincial Councils Elections Act, changing the entire scheme of elections and to thereby postpone elections. The former CJ had entreated the SC to make a declaration that the Speaker is not empowered by law to certify that this Bill was duly passed by Parliament in terms of Article 79 of the Constitution. The former CJ has also prayed for interim relief by way of a direction that the amendments made to the said Bill at the Committee Stage of Parliament shall not be operative till the final determination of this FR application and that the Elections Commission take steps to hold elections to the provincial councils under the elections law that appertained before this Bill was purportedly passed.

 

Taking on the matter from the EC end

These are very serious infractions of the law and it has got the entire legal fraternity in a buzz because of the implications that it has to set the wrong precedent for the future. Prof. G.L.Peiris’ also filed a Fundamental Rights petition in the Supreme Court last week aimed largely at the Elections Commission. His prayer was impugn the apparent decision of the elections Commission to postpone indefinitely the elections to several of the Provincial Councils which already stand dissolved by operation of Article 154E of the Constitution. Prof. Peiris has pointed out that the conduct of the Elections Commission constitutes executive and/or administrative action within the meaning of Articles 17 and 126 of the Constitution.

He has stated in his petition that amendments had been surreptitiously introduced at the Committee Stage in Parliament to the Provincial Councils Elections law and a narrow interpretation thereof by the Elections Commission has resulted in the indefinite postponement of elections to the PCs.  Peiris has also recounted the process whereby a Bill to increase women’s representation had been gazetted and then the original content of this Bill had been in effect scooped out and filled with completely new provisions at the Committee stage in parliament and that the government had taken this course of action after the Supreme Court had decided that the 20th Amendment brought to postpone the provincial council elections would need the approval of the people at a referendum.

Prof. Peiris pointed out that in its determination on the 20th Amendment, the SC had specifically held that a delay in exercising the franchise will affect the fundamental rights of voters and that this PC Elections (Amendment) Bill had then been taken up to achieve indirectly what could not be achieved by the Government directly by the aborted 20th Amendment, and to circumvent and defeat the very essence of the SC Special Determination on the 20th Amendment. He had also pointed out that according to the amendment made to the PC elections law in the manner outlined above, even after the delimitation of constituencies is complete, the holding of an election will be contingent in one or more future enactments that needed to be made by Parliament.

He pointed further that on September 25, 2017, in an interview in the Maubima newspaper, the Chairman of the Elections Commission has publicly stated that once the Act to amend the PC elections law is passed, the provincial council elections cannot be held and steps cannot be taken as mandated by Section 10 of the Provincial Councils Elections Act No.2 of 1982 (to call for nominations) until the delimitation process is concluded. Prof Peiris asked the SC to order the Elections Commission to forthwith take steps to conduct elections for the Sabaragamuwa, North Central and Eastern Provincial Councils which already stand dissolved by operation of Article 154 E of the Constitution, and for the other provincial councils as and when they fall due.

This raises some interesting questions. On the one hand, our constitution does not allow for the post enactment review of laws. Once a law is enacted, it is law even if it is inconsistent with the Constitution. Even so, the Supreme Court cannot possibly turn a blind eye to the complete subversion of due process in Parliament with legal provisions that were never gazetted being introduced through the back door during the Committee stage in Parliament without any opportunity being given to the public to scrutinize the proposed law or to invoke the constitutional jurisdiction of the SC. If the SC simply states that the courts do not have the ability to question an Act passed by parliament despite glaring, unheard of procedural manipulation, that will mean the end of the rule of law in this country. The present government is declining in popularity and their acts will come under close scrutiny.

But a new government in the first flush of victory will during its honeymoon period have virtually untrammeled power if the SC upholds the manner in which the yahapalana government introduced amendments to the provincial councils elections law. This country has rarely if ever had to confront a legal conundrum of this magnitude and the way the SC handles this will determine the future course of this country. Indeed it could well have unforeseen consequences for the future course of this government as well. Hence it’s not surprising that we are hearing all this sweet talk about holding the local government elections in January. After going to such lengths as recounted above to postpone an election and incurring public opprobrium in the process, what sense would it make to have the LG elections in January next year without enjoying the benefit of what they had done for as long as is feasible? Hence this writer would take the pledge of an election in January next year with a pinch of salt.